A Trump Prosecutor's Memoir Of A Case That Didn't Happened -- At Least Not Yet-- Is Latest Tell-All Controvers

• Jurisdiction: United States,Federal
• Law Firm: Frankfurt Kurnit Klein & Selz
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, Personal Injury, Libel & Defamation, White Collar Crime, Anti-Corruption & Fraud
• Author: Mr John Harris
• Published date: 27 January 2023

There is a long and rich history in the United States of government officials writing "tell-all" books about their experiences. Vincent Bugliosi wrote about his prosecution of Charles Manson. Two ex-prosecutors wrote "Stonewall," the "real story" of the Watergate prosecutions. Jeffrey Toobin wrote "Opening Arguments" about his role in the Iran-Contra investigation. Kenneth Starr wrote "Contempt" about his Whitewater prosecution. And John Bolton, James Comey and Andrew McCabe (among others) wrote revealing books about the workings of the Trump Presidency.

There's also a long and rich history of government outrage (and sometimes litigation) because these works allegedly disclose confidential, classified or privileged information in violation of the author's fiduciary or contractual obligations, or because of disputes regarding the government's often cumbersome vetting process. See, e.g., Penguin Books USA v. Walsh, 756 F. Supp. 770 (S.D.N.Y. 1990) (allowing publication of Toobin book; whether or not having prosecutors publish is a wise idea, "there is no permanent "gag" on prosecutors from speaking or writing about investigations and prosecutions which they have conducted or in which they have been involved"), vacated, 929 F.2d 69 (2d Cir. 1991).

The latest controversy involving a former prosecutor's book is an especially bizarre addition to this canon. On January 18, 2023, the Manhattan District Attorney demanded that its former prosecutor, Mark Pomerantz, "pause" the scheduled February 7 publication date of his new book, "People v. Donald Trump: An Inside Account" so that the DA can review it to make sure pending investigations are not compromised by his disclosures. (The DA has not yet seen the manuscript.)

What's going on? Well, Pomerantz's book focuses on something that didn't happen while he was in the DA's office: the indictment of former President Donald Trump, a non-event Pomerantz has described as a "grave injustice." But - less than a year after Pomerantz's angry resignation because of this alleged inaction - the DA says it is now actively pursuing just such a prosecution. The DA is concerned that Pomerantz's publication of a book setting forth the case against Donald Trump (and lamenting that it was never filed) at the same time as the DA is preparing to bring the case against Donald Trump could be harmful to the prosecution (and, one might add, would be very confusing).

Put differently, assuming People v. Donald Trump is published on schedule,it would be the first prosecutorial "tell-all" in American history written about a criminal case before it was ever filed.

If this sounds weird, it is.

Pomerantz is a well-known former federal prosecutor and...