Jurisprudence

Tish James Should Take Over New York’s Flagging Criminal Investigation of Trump

Artist Tom Zegan uses a cloth to wipe down the statue he created of former U.S. President Donald Trump at the Conservative Political Action Conference (CPAC) at The Rosen Shingle Creek on February 24, 2022 in Orlando, Florida. CPAC
Golden gaffe. Joe Raedle/Getty Images

On Wednesday, the New York Times reported that Carey R. Dunne and Mark F. Pomerantz, two esteemed prosecutors leading the Manhattan district attorney’s office’s criminal investigation of Donald Trump, had resigned, sounding the likely death-knell of that office’s multi-year investigation any New York prosecution of the former president for allegedly false financial statements.

The Times explained that newly elected DA Alvin Bragg had expressed doubts to them about proceeding with the case. Trump has denied any wrong-doing in connection with submitting his financial statements to lenders and the state.

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Those who worry that the former president has again proven to be “Teflon Don” should consider the following: The Manhattan DA is not the only one with prosecutorial authority over these possible crimes. There is another prosecutor in the state who could take on Trump—Attorney General Letitia James.

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James has been out front in pursuing the civil investigation into alleged financial fraud committed by Trump and his organization. She has already put Trump’s so-called charitable foundation out of business for its breach of fiduciary duties and statutory violations. A court also recently granted her the authority to depose Trump and some of his family members.

What’s important here, though, is something else. She and the state’s federal crimes bureau share with local prosecutors authority over “tax crimes and insurance fraud,” as well as “complex financial crimes that cross county lines.” To date, she and the Manhattan prosecutor have divided labor, with the AG taking responsibility for civil dimensions, and the DA for the criminal side.

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On Wednesday, James’s spokeswoman said the joint criminal inquiry “is ongoing and there is a robust team in place that is working on it.” And on Thursday, Bragg announced another prosecutor would now lead the investigation.

At the same time, the Washington Post reported that there have been occasions when “James’s office wanted to take a more aggressive approach” than Bragg. If he eventually declines to go forward, James could conceivably take over the criminal case in his stead.

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James’ team could maintain both aspects of the probe, criminal and civil. The attorney general has plenty of ability to do just that under her authority to investigate tax and financial crimes as well as under New York’s Executive Law §70-1. That law places within her office there an organized crime task force which has “the duty and power (a) to conduct investigations and prosecutions of organized crime activities carried on either between two or more counties of this state or between this state and another jurisdiction.” Under the state’s racketeering or “enterprise corruption” statute, a criminal enterprise does not need to be the Cosa Nostra but can be any business that conducts itself through a pattern of criminal violations of laws prohibiting fraud, false statements, and grand larceny, among others.

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James could even ask the two prosecutors who left Bragg’s office, Pomerantz and Dunne, to join her team. According to the Times, Mr. Dunne was “a high-ranking veteran of the office who has been closely involved with the inquiry for years” while  Pomerantz is “a leading figure in New York legal circles who was enlisted to work on it.”

Longtime New York criminal defense attorney Robert C. Gottlieb, also a veteran of the Manhattan DA’s office, told me that he knows Pomerantz and has “the highest regard for him.” Gottlieb said that Pomerantz, “would not resign unless he was totally disgusted by roadblocks being placed in front of him.”

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Gottlieb also said that he has experience as defense counsel in a financial fraud case where James brought both civil and criminal cases simultaneously, so doing so here would break no new ground.

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Those looking for first-time criminal accountability for Trump should be aware this would not necessarily be an easy prosecution. It’s no simple thing to prove beyond a reasonable doubt to the satisfaction of 12 unanimous jurors that Trump deceived sophisticated financial institutions who obviously have their own ability to verify the property valuations that borrowers give them. Trump’s lawyers can argue that they either confirmed the valuations or wanted to lend to him even if they thought the valuations false.

In addition, the Washington Post reported that Pomerantz himself acknowledged to a witness the challenge of proving Trump’s criminal intent. “He said, ‘We need to prove that Trump wasn’t just drinking his own Kool-Aid’” when his company told lenders that he had assets that were worth far more than what he actually owned.

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Prosecutors must show that Trump was lying; that is, that he knew that his financial statements were false and submitted them anyway. Trump can say that if his accounting firm, Mazars, who stood behind the financials until this month, believed in them, he certainly did not believe that they were inflated.

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Who can say at this point whether Bragg looked at the case and made a judgment about the difficulty of proof, a judgment over which reasonable prosecutors might differ?

The Post also reported that Bragg’s predecessor, Cyrus Vance, had approved the office seeking an indictment. Vance, however, chose not to seek re-election last year and handed the job off to Bragg.

Ultimately, leaving such a post is always a personal decision. But having done so in the middle of the biggest case in his career, and saying little more than, in effect, “it was time,” Vance left the door open to questions about why he didn’t stay to follow through. Anyone prosecuting Trump, we know from experience, will be the subject of unrelenting vilification. It’s possible Vance, who early in his tenure lost a high profile sexual abuse case against Dominique Strauss-Kahn, head of the International Monetary Fund, and who initially declined to prosecute Harvey Weinstein, did not want to risk losing a Trump prosecution on his watch.

The good news is that James has already proven that she is not intimidated by Trump or fearful of risk. She has the opportunity to show that again by picking up where Vance left off and where Bragg may be following suit.

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