Even Donald Trump deserves fair treatment and due process. A new book by his would-be prosecutor violates that basic rule, writes Washington Post columnist Ruth Marcus, Mark Pomerantz, a veteran prosecutor and defense lawyer, joined the Manhattan district attorney’s office in 2021 to help oversee the criminal investigation into Trump’s personal finances and business dealings. He quit a year later, asserting that Trump “is guilty of numerous felony violations” and that the seeming decision by the newly elected Manhattan district attorney, Alvin Bragg, not to pursue charges against Trump was “a grave failure of justice.” Now comes Pomerantz with a book-length, indictment of both Bragg and Trump, even as Bragg appears to be pursuing part of the case, involving Trump’s role in hush-money payments to adult-film actress Stormy Daniels. “People vs. Donald Trump: An Inside Account” is a remarkable piece of no-holds-barred score-settling and behind-the-scenes revelations about the strengths, and weaknesses, of the case against Trump. This is not how prosecutors are supposed to behave, Marcus says. It is an axiom of legal ethics that prosecutors do their speaking in court. Opining on someone’s supposed guilt when you have had special access to investigative information is flat-out wrong. As the District Attorneys Association of the State of New York put it, “A former prosecutor speaking out during an ongoing criminal investigation, that he was a part of, is unfortunate and unprecedented. … By writing and releasing a book in the midst of an ongoing case, the author is upending the norms and ethics of prosecutorial conduct.” Pomerantz isn’t the first prosecutor to litigate-and-tell. Any number of former Watergate prosecutors wrote books about that case. Fresh from his stint as a young lawyer in the Iran-contra investigation, Jeffrey Toobin offered a look inside the office. Andrew Weissmann, who worked for special counsel Robert Mueller, faulted the inquiry for pulling its punches in investigating Trump.
Toobin and Weissmann came in for criticism, but their behavior was nothing compared with that of Pomerantz. They submitted their manuscripts to the government for pre-publication review to insure that they did not improperly disclose grand jury materials or classified information. Pomerantz did not reveal that he was writing a book until less than a month before publication; the district attorney’s office didn’t see the book until its Tuesday release. There is a certain irony in journalists criticizing prosecutors for talking out of school. That’s what we try to get them to do all the time, seeking to coax tiny morsels of information out of people we know are duty bound not to disclose it. The book offers defense lawyers an easy road map into prosecutors’ own views of the infirmities of the case and an opportunity to use the disclosures for pre-trial mischief. In an author’s note, Pomerantz says that “Prosecutors typically do not describe their work in detail. This is because public disclosure of what goes on in law enforcement investigations can compromise those investigations or the cases that result from them. Also, prosecutors usually do not talk about their investigations because they need to respect the interests of persons who are not ultimately charged with crimes." Pomerantz told Marcus that there is a difference between a current prosecutor, “speaking with the power of the state behind him,” and one, like him, who is “speaking as a private citizen.” He said that airing internal disagreements was justified in this situation because “it’s important that prosecutors are not immune from criticism.”