David Cay Johnston: New York criminal case against Trump can and should continue

Even though newly elected Manhattan District Attorney Alvin Bragg rejected the advice of two prosecutors to indict former President Donald Trump for alleged financial crimes, the case can and should continue. That's the view of David Cay Johnston, Trump biographer and law lecturer at Syracuse University College of Law.

Writing in the New York Daily News, Johnston says that even though prosecutors Mark Pomerantz and Carey Dunne quit, "There is no reason for Bragg’s cold feet to be the end of the efforts to prosecute Trump and perhaps his confederates because New York Constitution and state statutes provide a simple way to revive this moribund criminal investigation. And there is nothing Bragg can do to stop it."

Johnston says New York Gov. Kathy Hochul can exercise her authority under Article 63, Section 2 of New York’s executive law to remove Bragg and appoint state Attorney General Letitia James to take over the case. "Although such action is rare," he says, "the governor’s authority to replace any county district attorney with the state attorney general is nearly unfettered, New York state’s highest court held in 1997. That case arose because Gov. George Pataki removed Bronx District Attorney Robert T. Johnson from prosecuting a murder case."

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He points out that because she already is pursuing a related civil case and has filed court papers making it clear that her team has solid evidence of financial misconduct by Trump, James would be the ideal candidate to take over the criminal probe.

"Many people are in prison today for much less serious offenses than Trump has committed and were convicted on much less substantial evidence," Johnston concludes. "The Pomerantz letter focused on falsifying business records, which can be a felony punishable by a year in prison. But James could bring a broader case under New York State’s anti-racketeering law. Let’s hope that Hochul does her duty, so we learn the facts in a trial."