Predatory prosecutors harassing Trump
Cy Vance, the district attorney for Manhattan, has hired a major former federal prosecutor to assist in investigating the business dealings of Donald Trump and his family. According to the New York Times, Mark Pomerantz will help Vance’s office investigate “whether the Trump Organization misled its lenders or local tax authorities about the value of his properties to obtain loans and tax benefits,” among other matters.
This move is no great surprise: prosecutors in many jurisdictions have been promising to pursue Trump once he left office and was no longer protected from indictment. Vance has been pursuing Trump’s tax records since he was first elected, and in 2019, he subpoenaed the files of Trump’s accounting firm. At the end of 2020, the district attorney hired a forensic financial consulting company, reportedly to begin piecing together alleged misdeeds at the Trump Organization.
At the state level, the Democratic primary election to replace Eric Schneiderman as attorney general of New York was dominated by the question of which candidate would more vigorously and creatively figure out ways to ensure that then-President Trump would be jailed and bankrupted. Zephyr Teachout, a leftist law school professor who has waged and lost three high-profile primary campaigns for office, was the first—in November 2016—to make an issue of Trump’s supposed violations of the Emoluments Clause.
While running for attorney general, Teachout swore, “if there are crimes, we will prosecute them. This is someone whose entire career is based on shady business deals, and we are going after the heart of his power. I don’t know what we will find, but I would be very surprised if we would find nothing.” On a similar note, Letitia James, the winner of the election and current New York State AG, vowed on the night of her victory, “I will be shining a bright light into every dark corner of his real estate dealings, and every dealing, demanding truthfulness at every turn.”
What jumps out regarding all these promises to investigate is that no crime has been identified—only a target of prosecution, of whom it is simply assumed that he has committed crimes. But this manner of criminal jurisprudence is totally contrary to the spirit of American law, a bedrock principle of which is the assumption of innocence, both for the accused, but even more importantly, for people who have not been accused. Prosecutors running around pledging to investigate people they consider political enemies embody the apothegm of Stalin’s top secret policeman Lavrenty Beria, who famously said, “Show me the man, and I will find you the crime.”
Peru, Israel, and Brazil are among many countries that have prosecuted and jailed their former leaders; former French president Sarkozy is currently under indictment. But in these cases—as in most civilized, non-authoritarian countries—the officials were pursued for public corruption, such as bribe taking, that happened while they were in power. Trump is being investigated for alleged misdeeds that occurred well before he became president, such as supposed loan fraud, whereby he misrepresented the value of assets he presented to banks as collateral.
I have prosecuted financial crimes cases and have also worked on multi-million dollar financings. What so far has been absent from these probes any realistic probable cause that a crime was committed. In the last 20 years, Trump's businesses have prospered and he does not appear to be over-leveraged.
In financings of the amount in question, the lenders and their lawyers do extensive due diligence examining the assets of the borrower. They also work with the borrower's accountants to make sure the financial statements of the client are truthful and accurate. The loans are based on the borrower's current circumstances at the time. The lender does their own risk analysis. They also do their own evaluation of the assets pledged against the loan.
The chances that these fishing expeditions will find a crime are remote. The chances that they will waste a lot of the targets time and mone are signficiant.