This investigation ran wild when the prosecutors grew fixated on their target.
This investigation ran wild when the prosecutors grew fixated on their target.
M anhattan district attorney Alvin Bragg has effectively pulled the plug on a state criminal prosecution of Donald Trump and/or his family over the Trump Organization’s business and taxes. While Bragg has not formally shut the door, and Trump’s legal woes are far from over, it seems that New York will get no closer than the small-beer indictment of former Trump Organization chief financial officer Allen Weisselberg over the tax reporting of perks.
Whatever you think of Trump as a political figure, that is a good thing. Political opponents bringing criminal charges against a former president is a dramatic step that has never before been taken in the United States. It would be entirely appropriate to charge Trump or another former president over a clear, obvious violation of a regularly enforced criminal law — if, for example, Trump actually shot someone in the middle of Fifth Avenue. But pushing the envelope to indict a former president under a creative expansion of the law, upon tenuous evidence, in ways not customarily done to ordinary citizens, would be a disaster for the rule of law.
Back in 1988, Justice Antonin Scalia penned his famous lone dissent in Morrison v. Olson against the constitutionality of the independent-counsel statute. The statute, already unpopular with Republicans, was allowed to expire a decade later, after the investigations of Bill Clinton convinced Democrats that Scalia had been right about the risk of selective, politicized prosecutions when prosecutors are set to investigate one particular person and removed from the competing responsibilities of other cases.
Ben Protess, William K. Rashbaum, and Jonah E. Bromwich of the New York Times took a look under the hood of the Manhattan DA’s Trump investigation. What they found is a striking illustration of precisely the sort of loss of perspective that Scalia predicted.
Picking the Team
Scalia on the hiring of prosecutors recruited to pursue one particular target:
An independent counsel is selected. . . .What if . . . [this is] a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? . . . The independent counsel thus selected proceeds to assemble a staff. . . . In the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual.
Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person?
The Manhattan DA’s investigation, initiated under Bragg’s predecessor Cyrus Vance Jr., was headed by two veteran prosecutors specially tabbed for the role, Mark Pomerantz and Carey Dunne. How did Pomerantz come to this job? As a volunteer, working without pay, with nothing else to do but investigate one man:
Mr. Pomerantz, 70, had once run the criminal division of the U.S. attorney’s office in Manhattan. He had also been a partner at the prestigious law firm Paul Weiss, and he came out of retirement to work on the investigation without pay.
Why was he hired?
In 2012, in the first of his three terms, Mr. Vance closed an investigation into accusations that Mr. Trump’s son Donald Jr. and his daughter Ivanka had misled potential buyers of apartments at one of the Trump Organization’s New York hotels, Trump Soho. The decision trailed Mr. Vance for years, subjecting him to criticism after Mr. Trump was elected president.
Who else did Vance consult when deciding to go forward? More people who had tried and failed to prosecute Trump:
As his tenure drew to a close in December, he consulted a group of prominent outside lawyers to help inform what would be his final decision. The group was referred to internally as “the brain trust” — a handful of former prosecutors that included two senior members of Robert S. Mueller’s special counsel inquiry into Mr. Trump’s 2016 campaign.
How did Bragg get elected to replace Vance?
At the attorney general’s office, Mr. Bragg had overseen a significant amount of civil litigation against Mr. Trump and his administration — cases he often cited in the district attorney race.
Picking the Man
Scalia on the investigation’s tendency to expand beyond the original “crimes” it was supposed to investigate, while remaining fixated on the individual targeted:
Should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking . . . to expand his or her authority . . . which would in all likelihood assign it to the same independent counsel.
He quoted Robert Jackson, then the attorney general and later a justice, on the hazards of approaching a criminal prosecution this way:
One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. . . . What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.
If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. 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. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.
It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
Here’s how the Manhattan DA’s investigation metastasized, with only the target staying the same:
For months, the prosecutors had envisioned charging Mr. Trump — and possibly Mr. Weisselberg and the Trump Organization — with the crime of “scheming to defraud” for falsely inflating his assets on the statements of financial condition that had been used to obtain bank loans. But by the end of the year, the prosecutors had switched gears, in part because Mr. Trump’s lenders had not lost money on the loans but had in fact profited from them.
The new strategy was to charge Mr. Trump with conspiracy and falsifying business records — specifically his financial statements — a simpler case that essentially amounted to painting Mr. Trump as a liar rather than a thief. The case still was not a slam dunk, Mr. Dunne acknowledged at the meeting. But he argued that it was better to lose than to not try at all. “It’s a righteous case that ought to be brought,” Mr. Dunne told Mr. Bragg.
Fixating on the Target
Scalia on why prosecutors employed only to chase one defendant lose the perspective provided by having other, important cases to prosecute:
The mini-Executive that is the independent counsel . . . operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year.
How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile — with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment.
How did the Manhattan DA’s prosecutors who had other cases to work on react?
Some of the career prosecutors who had worked on the inquiry for more than two years expressed concern. They believed that Mr. Vance, who had decided not to seek re-election, was pushing too hard for an indictment before leaving office. . . . Concern among the office’s career prosecutors about the investigation into the former president came to a head in September at a meeting they sought with Mr. Dunne. Mr. Dunne offered to have them work only on the pending trial of Mr. Weisselberg or leave the Trump team altogether. Two prosecutors eventually took him up on the latter . . . [at the end of Vance’s term], a third prosecutor left the investigation into Mr. Trump.
By contrast, how did Pomerantz and Dunne react?
Once [Bragg] told Mr. Pomerantz and Mr. Dunne that he was not prepared to authorize charges, they resigned. Explaining the resignation to his team of prosecutors in a meeting a day later, Mr. Dunne said he felt he needed “to disassociate myself with this decision because I think it was on the wrong side of history.” . . . Mr. Dunne, however, left the door open to a possible return. If Mr. Bragg reconsidered his decision, Mr. Dunne told colleagues, he would gladly come back.
Imagine having a prosecutor declare that a case should be brought so as to stay on a “side of history.”
This investigation was conducted under an elected district attorney, rather than a judicially appointed prosecutor accountable to nobody, so the process was not without some ultimate checks and balances. The Times notes that “Mr. Bragg’s decision on the Trump investigation may compound his political problems in heavily Democratic Manhattan, where many residents make no secret of their enmity for Mr. Trump.” But in the end, even Alvin Bragg has to consider what Pomerantz and Dunne did not: the public consequences of expending vast resources to pursue an unprecedented case on a flimsy theory that could easily fall apart in court. In that sense, Bragg’s decision vindicates Scalia’s view about the crucial nature of prosecutorial accountability to the voters. But the way in which this investigation proceeded is also a perfect illustration of prosecutors suffering from target fixation, so locked on the man they wanted to prosecute that they lost all sight of how we, as a society, are supposed to decide what crimes deserve prosecution.