In a closed-door session on May 12, Rep. Jim Jordan (R-Ohio) and the House Judiciary Committee will grill prosecutor-turned-author Mark Pomerantz about the New York criminal probe of former President Donald Trump.
Much of what Pomerantz is likely to say is already laid out in a 287-page exposé he published earlier this year. But unknowns include what action Jordan’s committee might take afterward—and what ethical or legal ramifications Pomerantz himself might face.
Jordan’s committee is trying to determine whether a Democrat-led office was politically motivated in pursuing charges against the Republican former president.
The committee is also considering legislation to block local and state authorities from targeting current or former presidents. Instead, such cases would be handled in federal courts, which is what Trump’s legal team argues should happen with his case.
By publishing his unauthorized tell-all amid an active investigation, Pomerantz set himself up for the scrutiny he now faces, New York white-collar crime lawyer Michael Scotto told The Epoch Times.
A former prosecutor, Scotto said if he were on Jordan’s team, Scotto would try to get Pomerantz to attest to assertions in the book under oath. Then Scotto would assert that Pomerantz “waived any privileges to other communications between executives of the office” due to his public disclosures.
“And if I was representing Mr. Pomerantz, I’d say, ‘Get in a time machine and don’t write the book,’” Scotto said.
Advice for Jordan’s Committee
David Zuckerman, a contributor to the American Thinker, says Jordan’s committee should focus its examination of Pomerantz on concerns that prosecutors abuse their power when they use “personal animosity as the guiding force of prosecutions.”
He said the committee should consider the words of Robert Jackson, a former U.S. attorney general, who later became a Supreme Court justice.
A prosecutor’s “most dangerous” power is his authority to “pick people that he thinks he should get, rather than pick cases that need to be prosecuted,” Jackson said.
“With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone,” Jackson said in remarks delivered in 1940.
In a somewhat strange twist, when the Judiciary Committee questions Pomerantz, a representative of District Attorney (DA) Alvin Bragg’s office will sit alongside him. The DA’s office could also be seeking legal or disciplinary action against him because of his book.
Scotto, who worked in the Manhattan DA’s office long before Bragg became its leader a year ago, said one of Bragg’s assistant prosecutors stated that the New York City Department of Investigations (DOI) had been contacted about Pomerantz’s book. Whether it is an investigation and its status are unknown.
The Epoch Times sought comment from the DOI and Pomerantz’s law firm.
While the seemingly dual role of Bragg’s office in the Pomerantz hearing before the Judiciary panel might “appear odd,” Scotto said, “the General Counsel is likely there to protect DA Bragg’s privileges, and not Mr. Pomerantz.”
‘Get-Trump’ Agenda Denied
By publishing revelations about machinations of the Trump probe, Pomerantz may have run afoul of attorney ethical rules or even a New York law, Scotto and others say.
Published three months ago, “People vs. Donald Trump” traces the tortured path that the Trump investigation took during 2021-22. During that time, Pomerantz served as an unpaid special assistant district attorney. According to his book, he brought focus and order to a chaotic, disorganized investigation.
In the book, Pomerantz asserts that politics weren’t discussed as he and the DA’s team worked on the Trump case. However, in several passages, Pomerantz is critical of Trump and expresses disdain for him.
Experienced as both a prosecutor and a defense lawyer, Pomerantz came out of retirement to help with the Trump probe. He was tapped for his expertise in handling high-profile, complex financial crime cases.
Pomerantz admits he “had little regard for Trump or his business ethics” but denies pursuing a “get-Trump” agenda. Instead, Pomerantz said he was motivated to work on a fascinating case of great import.
He became convinced that Trump had committed crimes. But shortly after taking office in 2022, the new DA, Bragg, declined to prosecute Trump. As a result, Pomerantz and fellow Trump investigator Carey Dunne resigned. Pomerantz blamed Bragg for a “grave failure of justice.”
A year later, despite the DA’s protestations, Pomerantz released his book. Scotto thinks Pomerantz may have written the book to help goad the DA’s office into charging Trump.
In April, two months after Pomerantz published his book, Bragg announced that Trump had been indicted on 34 felonies. Bragg has denied political motivations, and the former president denies accusations of falsifying business records.
Book Spawned Concerns
Days before the book’s release, the Association of Prosecuting Attorneys (APA) sent a seven-page letter to Bragg’s office, responding to the DA’s concerns about the possible consequences of Pomerantz’s revelations.
“All [attorneys], including prosecutors, are prohibited from publicly opining on the guilt of any person,” the letter says. Such a breach could result in a “formal complaint to the state bar association that he has violated his ethical duties.”
The attorney could be suspended or terminated from practicing law, “depending upon the severity, motive, frequency of these statements, as well as any benefit, such as a book, that is sought to be gained by the lawyer,” the letter said.
It’s unclear whether any such complaint was filed against Pomerantz. The Epoch Times sought comment from the APA.
In light of such ethical rules, Scotto said he was unaware of any other attorney who has written a book about a still-active case.
Scotto and the APA point out that New York City Charter Section 2604 forbids public servants from disclosing “any confidential information…which is not otherwise available to the public or use any such information to advance any direct or indirect financial or other private interest.”
However, that section does allow public servants to expose “waste, inefficiency, corruption, criminal activity, or conflict of interest.”
In his book, Pomerantz says he became convinced that Trump was engaging in criminal activity. Pomerantz’s book says he stayed within ethical bounds by omitting grand jury testimony and information sealed under court orders.
Scotto says he knows of no one who has been prosecuted for violating the anti-disclosure law, which would be a misdemeanor.
Still, Scotto feels uneasy about the book. He started reading it, but quit on page 36, after reading a passage that turned him off.
Pomerantz wrote: “The office was the legal equivalent of an old dog that had gone about its routine for years and years. Learning new tricks, or operating at the cutting edge of the criminal law, particularly in a high-profile investigation, was not a prized part of office culture.”
Scotto said “the arrogance and the inappropriateness” of Pomerantz’s book turned him off after he read that.
Unable to ‘Thread the Needle’
Shortly after joining the DA’s team, Pomerantz learned that prosecutors had abandoned the idea of charging Trump in connection with a $130,000 hush-money payment. His ex-lawyer, Michael Cohen, bought the silence of adult film star Stormy Daniels. Her claims of an extramarital affair could have been damaging to Trump if released prior to the 2016 presidential election, so Cohen paid her to keep the story quiet.
Pomerantz said it bothered him that Trump was egging on supporters to chant, “Lock her up” about his political opponent, Hillary Clinton, while simultaneously engaging in an unsavory hush-money deal–and an alleged cover-up of it.
“I viewed it as serious criminal conduct, even though it seemed we could not thread the needle of New York’s antiquated Penal Law to find an appropriate felony charge that was immune from legal challenge,” Pomerantz wrote.
After Trump won the election, he allegedly covered up reimbursing Cohen for the hush money with invoices for legal services that Cohen didn’t perform.
But, within the DA’s office, there were many concerns about the legal sufficiency of such a case, Pomerantz’s book says. Because that part of the Trump probe was considered “dead” and then resurrected, it became known as the “zombie” case in the DA’s office, Pomerantz wrote.
Trump was eventually indicted in connection with Cohen’s payment to Daniels, whose real name is Stephanie Clifford.
But Scotto and many other legal experts question the wisdom of charging Trump under an untested legal theory. In Trump’s case, a New York misdemeanor was elevated to a felony by alleging that it was committed in furtherance of another crime.
The approach, however, isn’t “novel,” Scotto said. He remembers using it while he worked in the DA’s office, which he left more than a decade ago.
Still, he questions the wisdom of using this theory in a politically charged case of great significance.
Scotto said bringing a case against a former president, presidential candidate, or “anybody who’s running for political office” must be approached with great care.
“You would want it to be a slam dunk so that there wasn’t a perception that the case was about anything other than justice being served,” he said.
When such a case appears to be built on a shaky foundation, “whether you like the former president or not,” Scotto said it makes people question: “Why is this the case that’s been brought?”
But Pomerantz said it takes guts to pursue risky cases; there is “a large gray area” in deciding which cases can be won and which cannot.
Scotto says that, based on what little of the book he read, he suspects that Pomerantz’s anti-Trump animus influenced his pursuit of Trump–which Pomerantz denies. “If you investigate facts, you go where the facts lead you. If you investigate somebody, you know, in many cases, you continue to try to find things to cobble something together,” Scotto said.
That may have been what happened here, Scotto says.
Pomerantz said he was “excited” about his own “creative legal theory.” Trump, in a tweet, claimed that he was a victim of extortion in the hush-money payment scheme. And Pomerantz wanted to use that against him.
“We did not actually have to bring a criminal case against Clifford (or her lawyer), but we would have to allege that Trump had been extorted. If we established the extortion, we could go on to step two: charging Trump with money laundering because he had worked with Cohen to conceal his identity as the source of the extorted funds.”
But Pomerantz said the “cautious and conservative culture” of the DA’s office clashed with his “creative theorizing.”
Objectors said that past extortion cases involved threats of physical violence; in contrast, Clifford used her lawyer as a mouthpiece, offering to buy her silence. It was a “soft” extortion, and “therefore might not constitute a crime at all,” objectors said, according to Pomerantz’s book.
Pomerantz thought there was “no substance” to these objections.
Pomerantz had a “sinking feeling” in his stomach after realizing that “the money had to qualify as ‘criminal proceeds’ when Cohen sent it; otherwise, sending it was not money laundering.”
“Legally, the hush money payment had not become ‘dirty’ money until Clifford or her lawyer received it, so neither Cohen nor Trump had committed money laundering by sending it,” the book says.
And objectors also “were dubious about whether Trump had been ‘extorted’ in the first place, as opposed to simply being the highest bidder for the story that Clifford had threatened to make public,” he said.
‘Zombie’ Keeps Coming Back
“The ‘zombie’ case went back into the grave in March 2021…My novel theory had ‘whiffed,’” Pomerantz wrote.
He also talks about how it was later resurrected. Meanwhile, the DA’s office considered other charges against Trump, too, including allegations that he defrauded Deutsche Bank by inflating his net worth on loan applications. But no one was harmed, and there probably was no way to prove that the bank would have denied the loans if Trump had reported a lower net worth, the book says.
Thus, Pomerantz’s pursuit of Trump pivoted back to the “zombie” case. He describes several meetings in which Bragg and others in the DA’s office seemed disinterested in prosecuting Trump.
Pomerantz thinks Bragg may have feared pursuing such a case right out of the gate because it might have “defined and ruined his tenure” as the new DA.
Toward the end of the book, Pomerantz said he hoped the DA’s office “does pursue the ‘zombie’ case.”
Scotto thinks the on-again, off-again nature of the case raises serious questions about it.
“It’s like ‘Pet Sematary,’ right?” Scotto said, referring to the Stephen King horror novel and movie. “Most things that die should stay buried.”
“The fact that the case kept dying and being resurrected again just feeds into the whole narrative that this is a political hit job,” Scotto said.
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