Editor’s Note: Jennifer Rodgers is a former federal prosecutor, adjunct professor of clinical law at New York University School of Law, lecturer-in-law at Columbia Law School and a CNN legal analyst. The opinions expressed here are her own. Read more opinion at CNN.
When it comes to the unfortunate fight between former prosecutor Mark Pomerantz and Manhattan District Attorney Alvin Bragg, the outcome is now clear. Pomerantz is the loser. And former President Donald Trump is the likely winner.
In February 2021, Mark Pomerantz, a very experienced former federal prosecutor, joined former Manhattan District Attorney Cy Vance’s office and led the criminal investigations into former President Donald Trump’s financial dealings.
Before Vance retired at the end of 2021, the Manhattan DA’s office indicted two Trump Organization companies, along with its Chief Financial Officer Allen Weisselberg, on multiple charges of criminal tax fraud and falsifying business records. In December 2022, a jury found Trump Corp. and Trump Payroll Corp. guilty on all counts. Weisselberg, who struck a plea deal with the prosecutors, was sentenced in January to five months in jail.
By 2022, Pomerantz thought his team had sufficient evidence to file felony charges against Trump in a separate case. But Bragg, the new DA who succeeded Vance, was concerned there wasn’t enough evidence to make the case that Trump intended to break the law.
Pomerantz ended up resigning in a public, noisy fashion, writing, “I believe that your decision not to prosecute Donald Trump now, and on the existing record, is misguided and completely contrary to the public interest.” And now, Pomerantz has written a book about the case.
The gist of Pomerantz’s claim is that he had assembled a strong criminal case against Trump, but Bragg lacked enthusiasm, and possibly the courage, to bring it. Bragg, for his part, has said that the case was not ready in early 2022 but that the investigation is still ongoing.
The Manhattan DA’s office recently impaneled a grand jury and began presenting evidence about Trump’s alleged role in a hush money payment to adult film star Stormy Daniels. (Trump has denied the affair with Daniels, and any wrongdoing.) Bragg’s office also alleges that Pomerantz’s public disclosure of investigative details and inner deliberations of the office violate Pomerantz’s confidentiality obligations and may harm the case.
A lot of ink has been spilled about the Bragg/Pomerantz affair. I won’t rehash all the details here, although I will note that the more that comes out, the more it looks like Bragg has the better of the arguments about the readiness of Pomerantz’s case and the strength of his legal theories. The truth is that so many things about charging Trump would be unprecedented and therefore subject to legal uncertainty; under these circumstances, making sure the evidence is strong and the legal theory is solid before proceeding with charges is eminently reasonable.
In any case, Pomerantz has done something worse than being overly aggressive in pushing for charges in internal meetings. Because, putting aside rank corruption or extreme incompetence — which absolutely no one alleges here — a prosecutor should never, ever, disclose anything about a pending investigation that could jeopardize that investigation. Pomerantz’s actions have led to the disclosure of significant information about the DA’s investigation, the evidence it gathered, the charges under consideration, the legal theories that some prosecutors favored, and the sometimes contradictory views of all of those things among different lawyers within the office. Pomerantz has also criticized the office’s lawyers and questioned their legal abilities.
Legal experts have opined that Pomerantz’s statements about the investigation may have violated his duty of confidentiality, his obligations under the legal ethics code and potentially even the criminal grand jury secrecy rules. (Pomerantz said in a statement, “I am confident that all of my actions with respect to the Trump investigation, including the writing of my forthcoming book, are consistent with my legal and ethical obligations.”)
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But equally bad, in my view, is that Pomerantz has given Trump a gift. To be clear, even without Pomerantz’s revelations, a Trump defense would be sure to include claims of selective and vindictive prosecution — it has become a standard response from Trump to play the victim. And Trump, if charged, will undoubtedly attack the legal theory put forward by prosecutors, particularly any novel applications of New York law. But now those claims will carry more weight due to the revelations of former prosecution team member Pomerantz and what we know about the infighting among the prosecutors themselves.
The irony is that the thing that Pomerantz claimed he wanted most in his resignation letter was for Trump to be held accountable. And yet the end result of this campaign of Pomerantz’s may be to make it less, not more, likely that accountability in the form of a conviction of Trump ever comes to pass. For any true prosecutor, that’s a terrible thing.