There is rarely bad news in a district attorney’s office. Prosecutors almost never lose at trial because 90 to 95 percent of criminal cases end in plea deals. They report so little data on their performance—on charging decisions, sentencing patterns, or even misconduct—that experts refer to the average prosecutor’s office as a “black box.” Americans mostly learn about what their local district attorney does on their behalf through press conferences and campaign ads for their reelection.
So it is extraordinary that The New York Times published a resignation letter this week from Mark Pomerantz, a now-former prosecutor in the Manhattan district attorney’s office. Pomerantz resigned in February in protest of what he said was District Attorney Alvin Bragg’s decision not to bring charges against former President Donald Trump, after a years-long investigation into his company’s finances. In the letter, Pomerantz told Bragg that Trump is “guilty of numerous felony violations.”
“His financial statements were false, and he has a long history of fabricating information relating to his personal finances and lying about his assets to banks, the national media, counterparties, and many others, including the American people,” Pomerantz wrote. “The team that has been investigating Mr. Trump harbors no doubt about whether he committed crimes—he did.”
Unless something changes, the letter will be a fitting coda for an investigation that once represented the most perilous legal challenge for the former president. Trump fought it every step of the way, even by raising far-fetched legal theories before the Supreme Court in 2020. The justices rejected him in 2020 by ruling that presidents could not generally invoke their office to ignore a state criminal subpoena. It turns out that Trump did not even need the presidency to defeat this case, however. He simply had to be persistent, careful, and wealthy.
The investigation centered on Trump’s financial practices while running his family business. Michael Cohen, Trump’s former legal fixer, told Congress in early 2019 that Trump would give different valuations of his properties to different parties depending on how it would benefit him. Some were mundane: Trump regularly gave inflated numbers to Forbes magazine when it assessed his net worth. Others came with potential legal consequences. To tax agencies, he allegedly gave lower values that reduced his final tax bill. To banks and other financial institutions, Trump allegedly gave higher values that allowed him to secure larger loans than would otherwise be available to him.
State and local investigators have echoed Cohen’s allegations. Last summer, the Manhattan district attorney’s office, led by Cy Vance Jr. at the time, charged the Trump Organization and chief financial officer Allen Weisselberg with multiple counts of tax fraud and financial mismanagement crimes. Prosecutors alleged that Weisselberg helped conceal millions in unreported income for himself and others, alleviating his tax burden and enriching himself. Trump himself was only named in passing in court filings. Weisselberg, who is currently awaiting trial, has asserted that he won’t “flip” on his longtime boss.
In January, New York Attorney General Letitia James told a court that the Trump Organization and its top employees frequently misreported the values of Trump’s properties for financial gain, and that they had gone to considerable lengths to cover it up. James tipped her hand in the ongoing civil probe after Trump and his eldest children tried to quash subpoenas from her office; a judge rejected their bid soon thereafter. While James’s investigation is ongoing, her office does not have the power to bring criminal charges against Trump and his associates.
That responsibility fell to Alvin Bragg, who took over from Vance as district attorney in January. Bragg showed an immediate interest in the case, according to Pomerantz, and “devoted significant time and energy to understanding the evidence we have accumulated with respect to the Trump financial statements, as well as the applicable law.” But he ultimately decided not to move forward with charging Trump himself for falsifying his financial statements. According to the Times, Bragg expressed concern about whether prosecutors could prove Trump’s intent to break the law and whether key witnesses like Cohen would be credible to a jury.
Pomerantz’s letter, which appears to have been written for public consumption, says the investigation is now moribund. “You have reached the decision not to go forward with the grand jury presentation and not to seek criminal charges at the present time,” he told Bragg. “The investigation has been suspended indefinitely. Of course, that is your decision to make. I do not question your authority to make it, and I accept that you have made it sincerely. However, a decision made in good faith may nevertheless be wrong. 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.”
We’ve been here before. Special counsel Robert Mueller outlined multiple instances where Trump could be charged with obstruction of justice in the Russia investigation. Then he effectively declined to prosecute him because of the Justice Department’s quasi-policy against indicting a sitting president. Congress had two opportunities to hold Trump accountable: first for extorting the Ukrainian government to fabricate a smear campaign against then-candidate Joe Biden in 2019, and then for inciting his supporters to attack the Capitol and overthrow American democracy in 2021. The Senate declined to convict him on both occasions.
It turns out that it’s pretty easy to commit crimes in this country and get away with it. You need the financial resources to pay for your lawyers’ fees as they draw out every legal proceeding into a years-long siege. You need to attack your investigators and prosecutors relentlessly to delegitimize them in the eyes of your supporters. You need to enforce absolute loyalty among your associates and co-conspirators, whether by offering pardons to potential witnesses in exchange for their silence, by firing law-enforcement officials who refuse to pledge their fealty to you, or by simply harassing them in public if they step outside the line. You shouldn’t write anything down, especially in an email, in case it gets turned over to investigators. And it helps if you can get roughly half of the nation’s political infrastructure to actively or passively support your attempts to evade justice.
Bragg’s decision to abandon the case means that Trump will be rewarded once again for his shameless tactics. “I fear that your decision means that Mr. Trump will not be held fully accountable for his crimes,” Pomerantz wrote. “I have worked too hard as a lawyer, and for too long, now to become a passive participant in what I believe to be a grave failure of justice.” It also means that Trump will once again learn that he can do almost anything and get away with it.
Other potential inquiries into Trump’s wrongdoing are still out there. The Justice Department is conducting a wide-ranging investigation into the January 6, 2021, insurrection, though it’s unknown whether prosecutors are investigating Trump himself. And the Fulton County district attorney’s office in Georgia is reportedly probing Trump’s pressure campaign to alter votes after the 2020 election. After so many other feats of escapology, there is little reason to expect that he will be held accountable in any meaningful way. Nobody seems to want to be the one to make the big decision. That is a nightmare for the rule of law in this country—and a note of encouragement to a man who is, according to some of his closest allies, still trying to organize a coup. His only real hurdle next time may be bad luck.
