There are times when the concept of justice in America seems to be struggling to survive. That felt especially true last month, when Mark Pomerantz, one of the top New York City prosecutors handling the criminal investigation into Donald Trump, abruptly resigned. New Manhattan District Attorney Alvin Bragg initially refused to release Pomerantz’s resignation letter, but The New York Times obtained and published it on March 23. The strongly worded text reveals Pomerantz’s belief that Trump was, in fact, guilty of felony offenses — and his frustration with Bragg’s apparent disagreement.
The strongly worded text reveals Pomerantz’s belief that Trump was, in fact, guilty of felony offenses — and his frustration with Bragg’s apparent disagreement.
(Trump has denied allegations he did anything wrong in New York; his lawyer Ronald P. Fischetti told The Times he hoped Bragg would go a step further and “make a statement that he is discontinuing all investigation of Donald Trump.”)
When attorneys are sworn in as prosecutors, they take an oath. Although the oath varies slightly from jurisdiction to jurisdiction, in substance it involves a promise to faithfully enforce the applicable laws, be they federal, state, county or local. I had the honor to take such an oath many times in my 30 years as a prosecutor. I have prosecuted in military courts and civilian courts; in federal, state and local courts. In my experience and estimation, the people deserve three things from prosecutors: transparency (to the extent possible without compromising ongoing investigations), accountability and candor. When we look at how Alvin Bragg has performed in his short time as Manhattan district attorney, he seems to be coming up short on all three fronts.
Pomerantz is a former federal prosecutor with remarkable credentials. He served at the storied U.S. Attorney’s Office for the Southern District of New York as chief of both its Appellate Division and its Criminal Division. He successfully prosecuted mob boss John Gotti. Pomerantz also spent time in private practice representing white-collar defendants and is widely regarded as a subject matter expert in financial crimes. In short, his legal bona fides are impressive.
Turning first to the issue of transparency: Early reporting suggested Manhattan’s two top Trump prosecutors — Pomerantz and Carey Dunne — were leaving the District Attorney’s Office because Bragg had decided not to charge Trump. Bragg’s office has claimed that assertion is not true while simultaneously refusing to disclose the contents of the resignation letters or a timeline for the case.
We now see from Pomerantz’s resignation letter that former District Attorney Cy Vance had concluded there was enough evidence to “seek an indictment of Mr. Trump and other defendants as soon as reasonably possible.” However, according to Pomerantz, Bragg instructed them “not to go forward with the grand jury presentation and not to seek criminal charges at the present time.” So which is it? New Yorkers deserve to know whether Bragg has, indeed, dropped the case against Trump.
Pomerantz also unambiguously states in his letter that “the team that has been investigating Mr. Trump harbors no doubt about whether he committed crimes — he did.” Of course, concluding that the target of an investigation committed crimes is only one part of the prosecutorial equation. Prosecutors also need enough admissible evidence to prove a prospective defendant’s guilt. Addressing this necessity, Pomerantz related, “I and others have advised you that we have evidence sufficient to establish Mr. Trump’s guilt beyond a reasonable doubt, and we believe that the prosecution would prevail if charges were brought.”
Bragg has assured the people of New York that, despite the resignations, “there is a robust team working” on Manhattan’s Trump investigation. As part of that supposedly robust team, Bragg has assigned a new top prosecutor, Susan Hoffinger, who, Bragg promised, “will lead the strong team that is in place” in the “ongoing investigation” of Trump.
There’s just one (big) problem: On Friday, The Daily Beast reported that Bragg’s office appears to be returning evidence to the witnesses in the Trump investigation, calling the development “the starkest sign yet that the Manhattan District Attorney’s investigation into Trump may be winding down.” Indeed, returning evidence obtained during a criminal investigation would signal that the case is robustly being dismantled, rather than robustly being pursued. Bragg’s actions undercut the credibility of his words and represent a third strike, this time for a lack of candor.
Just how gullible does Bragg think New Yorkers are?
The Manhattan DA needs to explain to his constituents what is really going on with the status of the criminal prosecution of Donald Trump. Absent a truthful, compelling, fact-based explanation, Bragg’s conduct echoes the frustrations of former Attorney General William Barr’s tenure, when Trump’s friends and criminal associates repeatedly escaped serious punishment. And while we’re on the topic of U.S. attorneys general, Barr’s replacement, Merrick Garland, also has some explaining to do. There has been no transparency about whether his Justice Department is investigating Trump. What distinguishes Bragg from Garland is that we now know how Bragg’s (former) prosecutors felt about the evidence against Trump. We’ve seen almost nothing from Garland or his team indicating any plan they may have to charge the former president — at least not yet. Meanwhile, on Monday, a federal judge presiding over a civil suit involving the House Jan. 6 committee declared Trump “likely attempted to obstruct the joint session of Congress” on Jan. 6, 2021. That, of course, would also be a crime. Trump has yet to respond to this most recent finding, although in the past he has denied and deflected similar allegations. And so, the cycle continues. Can someone please check American justice for a pulse?
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
