Last week, the New York Times and other media gleefully reported that Mark Pomeranz, one of the senior Manhattan prosecutors who was part of the “Get Trump” effort that has been ongoing in New York almost from the minute he was Trump elected President, believed that the he was “guilty of numerous felony violations” and that it was “a grave failure of justice” not to hold him accountable.” This information came as his resignation letter somehow was released to the press. Pomeranz submitted his resignation last month after the Manhattan district attorney, Alvin Bragg stopped pursuing an indictment of Donald Trump. Bragg had picked up the long-running attempt to charge Trump from his predecessor Cyrus Vance, Trump’s own personal Javert, who did not run for re-election.
What neither the Times nor any other source bothered to point out was that Pomeranz’s public statement that Trump was guilty of crimes were bright line violations of prosecutor ethics both in New York and across the profession.
Pomeranz is a prominent former federal prosecutor and white-collar defense lawyer who came out of retirement to work on the Trump investigation. He resigned on the same day as Carey Dunne, another senior prosecutor leading the inquiry.
Oh, to be sure, there is no way Pomeranz faces any consequences of his unethical stunt, and he knew it. To begin with, he is retired again, so there is nothing the bar can do to him. Second, he has an air-tight alibi: his statement wasn’t made directly to the news media, it was leaked to the news media, as he knew it would be by one of his Trump-hating colleagues if Pomeranz wasn’t the leaker himself. Since a high percentage of documents, even those supposedly confidential, that could be used to impugn or embarrass Trump have been leaked, Pomeranz knew that sending his protest letter into a Trump-Deranged office like that of the Manhattan D.A. guaranteed that it would end up on front pages. Conveniently, none of the professional ethics rules sufficiently define what a “public communication” or a “statement to the press” means to include “a inappropriate statement intended for public consumption that the prosecutor does or should know will be obtained by the news media.” That is an egregious and negligent one, particularly in the age of electronic communications. Even as it is, however, the New York Rules of Professional Conduct are pretty clear on the topic of lawyers prejudicing citizens by their extra-judicial comments. Rule 3.6 states in part,
(a) A lawyer who is participating in or has participated in a criminal or civil
matter shall not make an extrajudicial statement that the lawyer knows or
reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
New York’s version of Rule 3.8 inexplicably omits the section virtually every other jurisdiction includes, based on the ABA’s Model Rule:
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
Of course, the motive behind Pomeranz’s letter was that it heighten public condemnation of Trump. The American Bar Association’s ethics guidelines for prosecutors also makes the point:
c) The prosecutor should not make, cause to be made, or authorize or condone the making of, a public statement that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused, but the prosecutor may make statements that inform the public of the nature and extent of the prosecutor’s or law enforcement actions and serve a legitimate law enforcement purpose. The prosecutor may make a public statement explaining why criminal charges have been declined or dismissed, but must take care not to imply guilt or otherwise prejudice the interests of victims, witnesses or subjects of an investigation. A prosecutor’s public statements should otherwise be consistent with the ABA Standards on Fair Trial and Public Discourse.
As with the Manhattan D.A,’s investigation of Trump itself, undertaken as an abuse of the prosecutorial function similar to the approach of the Democratic House of Representatives as it searched for a way to impeach the President (“Let’s search until we find something we can pin on this guy…”), Pomeranz’s declaration in his resignation letter was a breach of prosecutor ethics that managed to sneak in, barely, to a safe haven among gray areas and loopholes. Once again, the assumption that basic fairness under the law does not apply to Donald Trump was the operating principle.
It is, and has been despicable.