The threat Donald Trump has posed to the American system of government over the past eight years has often been less about Trump than about what rules and norms his enemies would break to get at him, or at least, what they would cite in Trump’s behavior to justify discarding the restraints that a liberal, democratic rule-of-written-law system needs to survive. The media’s Russiagate follies offer just one vivid illustration.
One of the major reasons why the Manhattan district attorney’s investigation of Donald Trump has assumed an Ahab-like odor in its insistence of getting the man rather than first identifying a particular crime is the role of Mark Pomerantz. A retired former prosecutor and defense lawyer in his seventies, once with a distinguished reputation (I encountered him when I was looking for Wall Street law firm jobs as a law student in the mid-1990s), Pomerantz came aboard the Trump investigation without pay in order to investigate a particular man rather than any particular crime. This led to the investigation perfectly tracking the warnings of Robert Jackson and Antonin Scalia about the hazards of special prosecutors with tunnel vision: a constantly shifting focus from one theory to another, held together only by the hope of finally finding something to stick to Trump.
When district attorney Alvin Bragg pulled the plug on the wasteful and meandering investigation (one he has since revived), Pomerantz resigned in protest, then took his resignation letter public in March 2022, using his position as an investigator of non-public matters to publicly accuse Trump of committing unspecified crimes — to which I objected:
As Charlie Cooke explained at the time, it is shameful in our system of justice to have a prosecutor do this kind of hit-and-run public argument where he accuses someone of a crime without even detailing the charges or walking through the supporting evidence, let alone making his case to a jury of the defendant’s peers…The fact that Pomerantz had to throw in references to Trump lying to “the national media” and “the American people” only increases the odor around the letter of a man who has decided his target is guilty of something, and is grasping for a law to hang it on. Moreover, no particular crimes were mentioned. That, in itself, made it hard for the rest of us to pin down exactly what Pomerantz was accusing Trump of.
Now, Pomerantz is cashing in, selling a book in which he argues that the investigation “developed evidence convincing us that Donald Trump had committed serious crimes.” Trump has threatened to sue Pomerantz for libel. Pomerantz’s abusive conduct surely merits this, although Trump will probably — prudently — not follow through, because a civil lawsuit would give Pomerantz all manner of latitude under our system’s liberal discovery rules to issue subpoenas, take depositions, and leak various things to the press while consuming yet more of Trump’s time and attention.
Even without a lawsuit, however, at least Pomerantz’s behavior has roused his fellow New York prosecutors to renounce him:
An association of New York state prosecutors said Friday that [Pomerantz] violated ethical standards by writing a book about the case during an ongoing criminal investigation. [He] violated professional standards important to justice matters, according to the statement by J. Anthony Jordan, the president of the District Attorneys Association of the State of New York. “By writing and releasing a book in the midst of an ongoing case, the author is upending the norms and ethics of prosecutorial conduct and is potentially in violation of New York criminal law,” Jordan said in the statement.
No political opponent is worth what Pomerantz has sacrificed in mortgaging his own ethics.