Comment: Manhattan DA needs to detail its Trump investigation

Published 1:30 am Tuesday, March 29, 2022

By Norman Eisen, E. Danya Perry and Joshua Perry / Special To The Washington Post

Mark Pomerantz and Carey Dunne, the well-respected prosecutors who led the Manhattan District Attorney’s Office investigation into former president Donald Trump’s business dealings, have left the building.

And the leak of Pomerantz’s resignation letter excoriating District Attorney Alvin Bragg’s decision to drop what the prosecutors believed was a meritorious case means they’ve gone out with a bang. Under these unusual circumstances, Bragg should stop saying that his office continues to conduct the investigation into Trump; unless it’s really ongoing. That doesn’t seem to be the case, in light of the noisy resignation of the veteran prosecutors, the shuttering of the grand jury next month, and the reported return of evidence to witnesses. If the investigation is really closed, the better practice would be — within constraints prosecutors are obligated to observe, like grand jury secrecy — to offer the public an explanation of what happened, and why.

Pomerantz’s resignation letter makes clear that Bragg made the decision to end a long-standing investigation over the objections of line prosecutors. Pomerantz is a prosecutor with formidable expertise in complicated cases, like the one the office was reportedly building against Trump, and the veteran litigator is not known for hyperbole or grandstanding. The letter stated his belief that “we have evidence sufficient to establish Mr. Trump’s guilt beyond a reasonable doubt.”

Although we do not have access to all the evidence prosecutors reviewed, both exculpatory and inculpatory, the public record betrays a strong case for bringing an indictment. Two of us explained why in a lengthy report last year, concluding that Trump faced liability for offenses including falsifying business records.

But let’s be clear that the disagreement is on the merits: We reject any insinuation that Trump somehow got to Bragg. Part of the reason to hold Trump accountable is the principle that our public life deserves better than conspiracy theories that corrode our civic institutions. The people who rightly seek accountability for Trump shouldn’t contribute to the degradation of our public life by making evidence-free insinuations about Bragg.

Still, the case appears now to be closed, or on life support at best. If that’s the situation, Bragg could do the public a service by leveling with us about his decision-making and the status of his investigation.

All of us have served as government prosecutors or investigators. So we know well that officials don’t usually comment on ongoing investigations or explain decisions not to prosecute. Law enforcement methods can be sensitive, and public discussions of uncharged conduct risk tarring innocent people.

But the public discussion has long been smoldering here, and now Pomerantz’s letter has set it ablaze. If the investigation really is ongoing, Bragg should clearly and plainly explain what the stock phrase that “the investigation is continuing” means here. The letter should not have been leaked; but now that it has been, if Bragg disagrees with Pomerantz, he should say so. Prosecutors sometimes do discuss, in high-profile cases, why they declined to prosecute, because it is in the public interest that they do so. Bragg is a public servant who owes that to the public.

There is precedent to support the public benefit when prosecutors take this path. A few years ago, then-Gov. Andrew Cuomo abruptly shut down New York State’s Moreland Commission investigation into public corruption; apparently because the commission’s inquiries got too close to Cuomo himself. (One of us was the commission’s lead investigator.) The then-U. S. attorney for the Southern District of New York, Preet Bharara, seized the commission’s records and continued its critically important work over months of diligent inquiry.

But when the federal investigation into the commission’s closure did not reveal provable misconduct by Cuomo (even though it did result in the prosecutions and convictions of the two heads of the state legislature), Bharara took the unusual step of publicly explaining his decision not to prosecute. He didn’t avoid moral judgment, lamenting the commission’s “premature” closure. But he was also straightforward about what happened: “Absent any additional proof that may develop,” he explained, “there is insufficient evidence to prove a federal crime.”

The decision was disappointing to some, but explaining it publicly was the right thing to do because it enhanced public confidence in our system of justice and our rule of law. The same is true here.

Bragg himself also has set a strong precedent for transparency and disclosure. Some of us publicly supported Bragg’s Day 1 memo, which articulated clear policies about prosecution and pretrial detention. We did so not just because it was good, evidence-driven public safety and civil rights policy, but because it is good democratic practice to tell the public what prosecutors are doing and why. That visibility into prosecutorial policies is unusual but important.

Virtually unchecked prosecutorial discretion is the hallmark of our criminal legal system, which — as one influential scholar observed — operates “in the shadow of prosecutors’ preferences.” Data coming out of the justice system is notoriously erratic, too. The key touchpoint of citizen involvement in the investigation and charging process, the grand jury, is secret. And even once charges become public, we see almost nothing of what happens in the legal system, where public trials are vanishingly rare. So we don’t get to see what prosecutors do or how they think. Pomerantz’s memo offered rare insight, although he himself lacked the authority to make the ultimate decision about whether to prosecute. That authority rests with Bragg; and as a result, he should follow the approach the U.S. attorney’s office took in the Moreland case and make his views public.

Opacity contributes to the increasingly prevalent belief that Trump is Teflon-coated when it comes to criminal charges: Nothing sticks. Americans can’t say with confidence any longer that no one is above the law, since that is exactly where one man apparently has resided for so long.

Since the moment he took office, Trump has represented an open challenge to U.S. rule of law and norms of governance. Trump should be held accountable for any wrongdoing; criminally so, where that’s appropriate. But if that is not going to happen in Manhattan, the district attorney still has an opportunity to reassert the importance of the exact norms that Trump has repeatedly flouted: transparency, accountability and candor. Bragg can do that here by dropping his head-scratching claims that the investigation continues if it really is done, and by explaining his thinking; and he should.

Norman Eisen is a senior fellow at Brookings and served as counsel to House Democrats for the first impeachment and trial of Donald Trump.

E. Danya Perry, a former deputy attorney general for the State of New York and former assistant U.S. attorney for the Southern District of New York, is a co-founder of Perry Guha LLP.

Joshua Perry is of counsel with Perry Guha, LLP, a litigation boutique focused on complex civil and criminal trial practice and white collar investigations.