Sunday Long Read: Bragging Wrongs

In an update, and correction, of my post last month about how the Manhattan DA's criminal case against Donald Trump fell to ashes, the NY Times reports in our Sunday Long Read the detailed story of how DA Alvin Bragg became convinced that charging Trump would lead to an unwinnable trial.

On a late January afternoon, two senior prosecutors stood before the new Manhattan district attorney, hoping to persuade him to criminally charge the former president of the United States.

The prosecutors, Mark F. Pomerantz and Carey R. Dunne, detailed their strategy for proving that Donald J. Trump knew his annual financial statements were works of fiction. Time was running out: The grand jury hearing evidence against Mr. Trump was set to expire in the spring. They needed the district attorney, Alvin Bragg, to decide whether to seek charges.

But Mr. Bragg and his senior aides, masked and gathered around a conference table on the eighth floor of the district attorney’s office in Lower Manhattan, had serious doubts. They hammered Mr. Pomerantz and Mr. Dunne about whether they could show that Mr. Trump had intended to break the law by inflating the value of his assets in the annual statements, a necessary element to prove the case.

The questioning was so intense that as the meeting ended, Mr. Dunne, exasperated, used a lawyerly expression that normally refers to a judge’s fiery questioning:

“Wow, this was a really hot bench,” Mr. Dunne said, according to people with knowledge of the meeting. “What I’m hearing is you have great concerns.”

The meeting, on Jan. 24, started a series of events that brought the investigation of Mr. Trump to a sudden halt, and late last month prompted Mr. Pomerantz and Mr. Dunne to resign. It also represented a drastic shift: Mr. Bragg’s predecessor, Cyrus R. Vance Jr., had deliberated for months before deciding to move toward an indictment of Mr. Trump. Mr. Bragg, not two months into his tenure, reversed that decision.

Mr. Bragg has maintained that the three-year inquiry is continuing. But the reversal, for now, has eliminated one of the gravest legal threats facing the former president.

This account of the investigation’s unraveling, drawn from interviews with more than a dozen people knowledgeable about the events, pulls back a curtain on one of the most consequential prosecutorial decisions in U.S. history. Had the district attorney’s office secured an indictment, Mr. Trump would have been the first current or former president to be criminally charged.

Mr. Bragg was not the only one to question the strength of the case, the interviews show. Late last year, three career prosecutors in the district attorney’s office opted to leave the investigation, uncomfortable with the speed at which it was proceeding and with what they maintained were gaps in the evidence. The tension spilled into the new administration, with some career prosecutors raising concerns directly to the new district attorney’s team.

Mr. Bragg, whose office is conducting the investigation along with lawyers working for New York’s attorney general, Letitia James, had not taken issue with Mr. Dunne and Mr. Pomerantz presenting evidence to the grand jury in his first days as district attorney. But as the weeks passed, he developed concerns about the challenge of showing Mr. Trump’s intent — a requirement for proving that he criminally falsified his business records — and about the risks of relying on the former president’s onetime fixer, Michael D. Cohen, as a key witness.

This is why the civil case that state AG Tish James is proceeding. The burden of proof is much lower than in a criminal case, and James's case has much more believable witnesses, depositions, and evidence. Trump was never going to be charged with criminal wrongdoing in a state corporate tax fraud trial. In the civil case, James can recoup the lost tax revenue and levy penalties and fines, but that's about it.

The problem is that both of the prosecutors who resigned say the case was solid enough to go to trial. Bragg's decision to not do so is very much a political one, and I don't like it.

Criminal charges are going to have to come from Merrick Garland, and frankly, he has the same problem that Bragg does: being able to prove Trump's actions as criminal beyond a reasonable doubt, much less bringing a trial to a jury without absolute bloody chaos dogging the proceedings every step of the way.

Or worse.