Almost exactly a month ago, I asked in this space whether the criminal case in New York against ex-president Donald Trump was on the verge of falling apart.
Then, it was reported that the two top prosecutors brought in specifically to run the criminal probe into whether Trump, his associates and businesses were involved in illegal practices had abruptly quit. Why did they quit? Because after years of work, Bragg stepped in and halted interviews before the grand jury that will ultimately decide whether or not Trump is charged.
Bragg, the New York Times reported, doubts whether the case would end in a conviction, despite the fact that a) his predecessor, former Manhattan DA Cyrus Vance aggressively pursued the case; and b) New York grand juries exist only to determine whether there’s enough evidence to bring a case to trial, not to determine the likelihood of a conviction, which is what trial juries are for.
We’ll come back to that last point in a bit, but for now, new reporting explains exactly why the two lead prosecutors working the Trump beat were mad enough at Bragg (who is coincidentally one of two Black prosecutors in New York whose offices are investigating Trump, the other being U.S. Attorney Letitia James) to walk off the job. The Times got hold of Mark Pomerantz’s, one of the frustrated prosecutors, resignation letter to Bragg, and he calls bullshit on the idea that Bragg should have lost confidence in the case. Trump, Pomerantz says, is absolutely guilty of multiple felonies, and his investigation unearthed more than enough evidence to prove it at trial.
From the New York Times:
One of the senior Manhattan prosecutors who investigated Donald J. Trump believed that the former president was “guilty of numerous felony violations” and that it was “a grave failure of justice” not to hold him accountable, according to a copy of his resignation letter…
Mr. Pomerantz’s Feb. 23 letter, obtained by The New York Times, offers a personal account of his decision to resign and for the first time states explicitly his belief that the office could have convicted the former president. Mr. Bragg’s decision was “contrary to the public interest,” he wrote.
“The team that has been investigating Mr. Trump harbors no doubt about whether he committed crimes — he did,” Mr. Pomerantz wrote.
Of course, just because Pomerantz believes in Trump’s guilt doesn’t mean he’d actually be found guilty. Bragg may be right in thinking that Trump wouldn’t be convicted at trial. There’s a saying among criminal attorneys that, ‘you can indict a ham sandwich,’ which is a nod to how much lower the evidentiary standard is to get a grand jury to charge someone (they only require enough evidence there’s probable cause to hold a trial) than it is to get a trial jury to convict (they require proof beyond a reasonable doubt that someone is actually guilty).
Which brings us back to the earlier point about grand juries: Because of that distinction, and because New York prosecutors use grand juries to bring the accused to trial all the time, there’s no way that Bragg hasn’t overseen cases in his career where the grand jury returned charges but the defendants were acquitted at trial. To paraphrase Cam’ron’s Rico character from the 2002 flick, Paid in Full, niggas get charged everyday, B.
That’s exactly what trials are for, and why it’s usually suspect, for example, when prosecutors put evidence against killer cops into grand juries but fail to land on criminal charges. You almost have to be not trying for a grand jury to not return an indictment, and even indictments won on weak evidence don’t usually stop prosecutors from either putting people on trial or locking them up.
Case in point: Kalief Browder, who killed himself after spending three years in New York’s Rikers Island jail only to have charges against him dropped without a trial, was sent to Rikers in the first place because prosecutors took a weak case against him to a Bronx County grand jury, which charged him with second-degree robbery. It’s probably the most infamous case that led to bail reform in New York, which passed in 2019.
It’s worth noting here that Bragg, Manhattan’s first Black DA, has been accused of being too reform minded for his efforts to make the criminal justice system more fair.
But the apparent course reversal on Trump begs a question that deserves Bragg’s public answer: If ordinary people like Browder can be subject to the grinding apparatus of New York’s criminal justice system on slim evidence, why can’t Trump face the same when your own prosecutors believe they have the goods for a conviction?