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Trump criminal probe at crossroads after departure of two prosecutors

The indictment long hoped for by opponents of former President Donald Trump looks less likely, legal experts say, after the breakup of the prosecution team conducting a criminal probe of Trump’s business deals.

MANHATTAN (CN) — Former President Donald Trump's personal attorney is advising him to breathe a sigh of relief after the departure of two prosecutors from the Manhattan District Attorney’s criminal probe.

“There is no way if they had a case, they would resign, without question,” Trump attorney Ronald Fischetti said in an interview with Courthouse News on Thursday. “It’s the biggest case in their career. Why would they resign if they had any kind of case?”

Fischetti's prediction follows news that broke late Wednesday that Carey Dunne and Mark Pomerantz are departing the Manhattan District Attorney’s Office, three years into an investigation of Trump's business dealings in which they have been at the helm.

Dunne and Pomerantz's sudden resignations are said to be the result of District Attorney Alvin Bragg putting doubt on the case, even after the office obtained copies of Trump’s tax returns in successful litigation that has already gone all the way to the U.S. Supreme Court.

Bragg is a relative newcomer to the case, having taken office in January after his predecessor who launched the probe, Cyrus Vance Jr., announced last year he would not seek reelection.

The office filed charges in July against the Trump Organization and its former chief financial officer, Allen Weisselberg, alleging the organization evaded taxes and allowed executive to collect nonmonetary “fringe” benefits. This week, Weisselberg asked the court to dismiss the criminal charges against him.

The Manhattan District Attorney’s Office did not return a request for comment about the future of the criminal probe. But legal experts said the move possibly signals the end of the probe while raising questions about what led to the sudden departures.

Prosecutors, Fischetti said, were unable to find witnesses who could have testified they lost money because of, say, loans issued to Trump.

“I know from 50 years of experience that there's no question that there was a meeting between the district attorney and the two people that was running this case, there was a meeting between the three of them,” Fischetti said. “The only conclusion that anyone can get for what happened at that meeting is they said they weren't going to go forward. And the only reason they're not going forward is because they don't have the evidence to go forward.”

Fischetti said, while he believes the district attorney’s case is over, he does not know exactly when it will be official. The term for grand jury hearing the prosecutor’s evidence against the organization expires in April, and he expects that it may be some months before District Attorney Bragg makes an announcement.

Before he represented Trump in the ongoing New York probe, Fischetti worked with Pomerantz for over a decade.

“Excellent lawyer,” Fischetti said of Pomerantz. “We tried cases together for years and years.”

But Fischetti does not know what would have caused Pomerantz to abruptly resign from the district attorney’s office, as the two stopped talking except for the formal communications they had about the case.

John Coffee Jr., a professor at Columbia Law School, said in an email that Pomerantz was considered a legal star. Once a fellow member of the faculty at Columbia Law, the 70-year-old Pomerantz was considered a likely candidate for U.S. attorney for the Southern District of New York during the Obama administration.

Pomerantz left the Southern District for private practice back in 1982, joining the Manhattan DA's Office for the Trump investigation last year on special assignment. Coffee said participation in the criminal probe that teased the possibility of convicting a former president was considered by some to be the capstone of Pomerantz's career.

Dunne's record as special counsel in the district attorney’s office meanwhile predates the Trump probe. Working on both the prosecution of film producer Harvey Weinstein and an investigation into Malcolm X’s assassination, Dunne has offered the district attorney’s office advice on strategic issues and significant investigations.

But now, Coffee said questions have reared up: What exactly was the conflict between Bragg and Pomerantz and Dunne? And what are the motivations of Bragg, who took office in January?

“Effectively, without these two prosecutors (who are being silent about this) the prospect of a criminal prosecution of Donald Trump appears dead,” Coffee wrote.

Jennifer Taub, who wrote the book “Big Dirty Money” in 2020, argues that white-collar crime these days is lucrative for those who are well-connected, white and wealthy.  

“This is yet another example it seems,” Taub, a professor at Western New England University School of Law, wrote in an email.

In her book, Taub notes that Wall Street falls within the domain of the Manhattan District Attorney’s Office, which is conducting the criminal probe into Trump’s finances. But in the aftermath of the 2008 financial crisis, the office launched only one prosecution against a small New York bank, a case that it lost at trial.

Taub said many individuals watching the case were watching for the District Attorney’s Office to issue a superseding indictment, expanding the charges against the Trump Organization. Over the last several weeks, when it appeared the office took little action in the case, Taub grew concerned.

“Noisy resignations of this type are designed to sound an alarm and invite questions,” Taub said.

The office was conducting its criminal probe as New York Attorney General Letita James pushed forward with a simultaneous a civil investigation, a situation that led members of the Trump family to argue that exercising their right against self-incrimination would cause investigators to draw “unfair adverse inferences.”

Last week, however, a Manhattan judge said no matter: Donald Trump now faces orders to sit for a deposition in the coming weeks.

Now some of the arguments the Trump family made regarding the dual investigations falls apart, Taub said.

What remains is a probe by the Westchester County district attorney into a Trump-owned estate there, Taub noted. Meanwhile, a district attorney in Atlanta got permission last month to empanel a grand jury to hear evidence about her probe into an alleged pressure campaign by Trump to have Georgia’s top election official overturn the results of the 2020 presidential election.

Daniel Alonso, a former prosecutor in the Manhattan District Attorney’s Office, tweeted Wednesday that the state prosecutors faced an uphill battle bringing a case against Trump and his company because state law tilts in the favor of white-collar defendants. 

New York state “fraud cases are a bear compared to federal. (Not saying federal fraud cases are easy!)” Alonso wrote.

In another tweet, the partner at the Buckley firm added: “Let's wait for the facts to come out. My guess: if not for the two-year detour to fed court & the Supreme Court, or if federal procedural rules applied, Trump would've been indicted months ago.”

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