In each of their cases, Vance declined to prosecute. In the case of the Trumps, Vance claims he “made the right call.” In the case of Weinstein, he claims there was insufficient evidence. He is wrong in both cases.
This week he claimed he couldn’t prosecute Weinstein because he lacked sufficient proof of Weinstein’s criminal intent when he allegedly groped Ambra Battilana in New York in March 2015. In fact, the evidence against Weinstein for sexual abuse is overwhelming.
The charge here, a misdemeanor, simply requires proof of sexual contact without consent. (There is also the likely charge of harassment.) The NYPD with Battilana’s consent secretly taped Weinstein aggressively entreating her—despite her pleas to stop—to come into his room, watch him shower, and submit to his sexual advances. Weinstein admits his conduct, wants to do it again, and tries to exploit his powerful position to force the young woman to succumb. When she tells him he engaged in sexual contact with her the day before, and it made her so uncomfortable, Weinstein agrees, and says he won’t do it again. His intent is unmistakable.
For a prosecutor the factual question is whether Weinstein in fact made sexual contact with her without her consent. That’s the charge, and the victim will testify to that, and the tape strongly corroborates her account. Vance’s claim that the crime is not prosecutable because there is insufficient evidence of criminal intent is not only unconvincing, it is preposterous.
Moreover, Vance’s criticism of the police for not involving his office in the victim’s taping of Weinstein is a very weak excuse. Whatever the protocols for police-prosecution cooperation, it’s not clear how the DA’s involvement in the recorded trap of Weinstein would have made a difference, or would have made the case more probative, or Weinstein’s guilt more convincing. The recording is damning as is.
As with the Weinstein case, Vance has given a number of explanations for dropping the Trump case. He claimed there was insufficient evidence that the Trumps had broken the law, but also that the victims were really not victims and in any event they were unwilling to cooperate with his office.
Vance’s refusal to prosecute the Trumps is just as disheartening, and just as difficult to explain.
Last week, as reported in an exhaustive report by The New Yorker, ProPublica, and WNYC, Vance overruled prosecutors in his office who were making a clearly prosecutable case against Ivanka and Donald Jr. for luring prospective buyers of a Trump luxury development in SoHo by making false and deceptive promotions. The Trumps, as the prosecution’s evidence shows convincingly, used Enron-like come-ons to intentionally inflate the value of the development to induce investors to buy units.
The prosecutors discovered numerous emails by the Trumps which showed how they repeatedly lied to buyers. The emails, according to persons who viewed them, had the Trumps discuss how to coordinate the false information they had given to prospective buyers; Donald Jr. tell a broker that nobody would ever find out because people on the email chain or in the Trump Organization knew about the deception; and that the Trumps approved, knew of, agreed to, and intentionally inflated the numbers to make more sales. In other words, the emails proved the Trumps knew what they were doing was wrong.
Based on these emails, documentary evidence, and interviews with buyers, the prosecutors had assembled sufficient evidence of the Trumps’ criminal conduct to impanel a grand jury. But that was before Vance met with the Trumps’ lawyer, Marc Kasowitz. Before and after Vance overruled his prosecutors, Kasowitz made large donations to his re-eletion campaign.
Again, Vance’s explanations are not convincing. First, Vance argues that it’s “ludicrous” to believe that Kasowitz’s money mattered, or that his office is “for sale.” But the way Vance did it, according to close observers, was “unusual,” “curious,” and “didn’t have an air you’d like.” Vance went over the heads of his line prosecutors who were conducting the investigation for two years and he overruled their decision to move ahead with the case.
Moreover, while for any prosecutor a criminal fraud investigation can be complex and challenging, the evidence against the Trumps of fraud, deception, and misrepresentation was solid. The emails themselves are devastating, just like the tape of Weinstein. Nor have the Trumps ever disputed any of the factual allegations, the contents of the emails, or the deceptive ways they promoted the SoHo development.
Nor should the fact that many of the buyers settled a civil suit with the Trumps have impeded prosecution, as Vance claimed. His statement that “the victims didn’t strike me as victims” is peculiar. In most corruption cases, there often are no victims. Corruption and fraud crimes typically are committed in secret, without anybody complaining, because participants in these nefarious arrangements may be pleased with the resulting benefits. But a responsible prosecutor investigating fraud and corruption looks mainly at what the perpetrator did; that’s where the crime happens. For purposes of the deterrent value of the criminal law, it really is irrelevant whether persons whom the perpetrator sought to cheat actually lost money or not, or whether they have been “victimized.”
Finally, perhaps the most troubling of all of Vance’s excuses is his claim that the biggest impediment to prosecution was the victims’ agreement not to cooperate with the DA as a stipulation of the settlement victims reached with the Trumps. From an ethical standpoint, this condition is offensive; it corrupts the administration of justice by impeding a prosecutor from conducting a responsible criminal investigation. One wonders whether Vance would do the same thing if the victim of a vicious assault, say on a child, refused to cooperate with the prosecution after the victim’s family received a huge sum of money from the perpetrator as a condition of not complaining. Or if a prosecutor was investigating the mob, would he reluctantly throw in the towel if witnesses were afraid to come forward?
A prosecutor possesses awesome weaponry to investigate crime and force witnesses to testify: the investigating grand jury, the issuance of subpoenas, and compulsion of testimony through grants of immunity. There was no legal or practical impediment to continuing the investigation of the Trumps and compelling the testimony of investors who were defrauded.
“Celebrity” prosecutions are sometimes difficult. The celebrities hire the best lawyers, and celebrity status might impress juries. Why Vance was gun-shy in prosecuting Weinstein and the Trumps is hard to know. Whether his reluctance speaks to his honesty, judgment, or competence, is unclear. But his excuses in both cases for not prosecuting are extremely troubling, and do not inspire confidence in his impartial and aggressive enforcement of criminal law.