In 2010, as Cyrus Vance, Jr., took office as Manhattan’s new District Attorney, he promised that “crimes committed by the affluent, the powerful, or by public officials will be investigated and prosecuted as vigorously as street crimes.” Today, his office’s failures to prosecute the affluent and the powerful threaten to define Vance’s tenure as D.A., even as he heads for unopposed reëlection to his third term, on November 7th.
It was reported here last week that, in 2012, Vance ordered his prosecutors to drop a promising criminal-fraud investigation against Ivanka Trump and Donald Trump, Jr., who were suspected of misleading potential buyers of condos in the Trump SoHo building; the order came after their father’s attorney, Marc Kasowitz, paid Vance a visit. Soon after Vance’s office dropped the investigation, Kasowitz donated and raised a combined total of more than fifty thousand dollars for Vance’s reëlection campaign.
Immediately on the heels of those revelations came explosive reports, in this magazine and in the Times, of the film executive Harvey Weinstein’s alleged sexual harassment and assault of multiple women in the course of three decades. The reports spurred new scrutiny of the D.A.’s decision, in 2015, not to arrest and prosecute Weinstein for a misdemeanor sex crime, based on Ambra Battilana Gutierrez’s contemporaneous report to police that he groped her without her consent in his Tribeca office. Weinstein’s defense attorneys included Vance’s former law partner Elkan Abramowitz, who was also a donor to his campaign. Weinstein’s attorney David Boies (who did not represent Weinstein in the criminal matter) also donated to Vance in 2015. (Disclosure: I worked as a prosecutor in the Manhattan District Attorney’s office thirteen years ago, before Vance was the D.A.)
Vance’s stomach for high-profile prosecution was tested early on, in the 2011 sexual-assault case against the French politician Dominique Strauss-Kahn, who, before his arrest, was the head of the International Monetary Fund. A maid who was cleaning the Sofitel New York hotel suite where Strauss-Kahn was staying reported to police that he had emerged naked from the bathroom and forced her to perform oral sex. The D.A.’s office indicted Strauss-Kahn and trumpeted the strength of the case, even staging a “perp walk.” But the office later disclosed credibility problems with the complaining witness. Vance reversed course and decided to dismiss all criminal charges, announcing that his office was “unable to credit her version of events beyond a reasonable doubt, whatever the truth may be about the encounter.”
Many thought that the collapse of the D.S.K. prosecution was the death knell for Vance’s young career as the D.A. Criticism of Vance, even by his supporters, centered on his decision to proceed with an indictment of such a high-profile target before the evidence was vetted and nailed down. A broader criticism made by prosecutors in his own office was that, in making choices about what cases to pursue, Vance was too enamored of the publicity that they might generate, and that he too often took discretion away from his prosecutors.
In the wake of what the Times called “the spectacular botch” of the D.S.K. case, which so publicly shaped the narrative about Vance’s early days in office, it is easy to understand that Vance might have felt hesitant to charge famous defendants if he was not absolutely certain he could convict them. That context may help connect the dots between the decision not to pursue either the Trump siblings in 2012 or Harvey Weinstein in 2015.
Ronan Farrow’s investigation, published in this magazine, detailing allegations of Weinstein’s harassment and assault, included an audio recording made during a New York Police Department sting operation the day after Gutierrez’s police report. The complainant wore a wire and asked Weinstein why he touched her breast the day before. Weinstein is heard on the tape saying, “I’m used to that,” and “I won’t do it again.” The D.A.’s office said at the time that “a criminal charge is not supported.” On Tuesday, amid outrage that the machinery around Weinstein apparently enabled his abuse and insured the victims’ silence, the D.A.’s office appeared to blame the N.Y.P.D. for arranging the sting without giving prosecutors “the opportunity before the meeting to counsel investigators on what was necessary to capture in order to prove a misdemeanor sex crime.” “What emerged from the audio,” the D.A.’s office said, “was insufficient to prove a crime under New York law, which requires prosecutors to establish criminal intent. . . . This, coupled with other proof issues, meant that there was no choice but to conclude the investigation without criminal charges.”
In a further public break with prosecutors, however, the N.Y.P.D. stated that the recording “corroborates the acts that were the basis for the victim’s complaint to the police a day earlier,” and pointed out that the recording was not the only evidence—namely, there was the testimony of the victim herself.
A run-of-the-mill misdemeanor case of nonconsensual sexual touching is routinely prosecuted on far less than a recording in which the accused admits to the conduct. The recording, in combination with the victim’s testimony, was significantly more evidence than prosecutors could hope to have in most groping cases they pursue, even given the imperative to establish criminal intent. In that context, it seems disingenuous for the D.A.’s office to claim that there was “no choice” but not to bring charges. There was a choice. It was rooted in prosecutorial discretion, and in the difference between a case against an ordinary person accused of a sex crime and a person like Harvey Weinstein.
The notion that the D.A. had been too quick to indict Strauss-Kahn in 2011 may have cast a shadow over the assessment of the evidence and of the likelihood of success. While the D.A.’s office was considering whether to charge Weinstein, gossip outlets (some of them likely fed by Weinstein’s publicity machine) were reporting that the complainant had attended one of Prime Minister Silvio Berlusconi’s Bunga Bunga parties, was a witness in an ongoing bribery case against him, and had previously reported being sexually assaulted by an Italian businessman but later declined to coöperate with prosecution. These facts do not inherently reflect upon the truthfulness of the allegation against Weinstein. But juries could, of course, draw inferences. Additionally, on Wednesday, the D.A.’s office told the Times that, according to the complainant, Weinstein touched her breast in the context of a conversation about her becoming a lingerie model; this supposedly complicated the provability of his having touched her “for the purpose of gratifying sexual desire,” as the law requires.
Misdemeanor charges against ordinary, often poor, people routinely result in a guilty plea, or in charges being kept alive until they have to be dismissed without conviction. But a man like Weinstein could not be expected to plead guilty. The risk of bringing charges against him, given the chance of a high-profile debacle, may have seemed worse than having no charges in the case at all.
Like many women with similar allegations, Gutierrez agreed to receive payment from Weinstein in exchange for not speaking of the incident. Many commentators have jumped on the idea that, but for these kinds of “payoffs” (which are really a form of legal settlement, under an explicit or implicit threat to sue or to go public), the serial abuse would have been exposed and addressed sooner. But an alternative to these private settlements—civil suits—is often not possible because the victims lack funds to pay high legal fees. And, when it comes to famous people’s misdeeds, obtaining redress through criminal prosecution is often more difficult than usual. (Police in New York and London are now looking into possible new criminal complaints against Weinstein.)
Vance’s decisions in the Weinstein and Trump cases may reflect the belief that public prosecutions are less winnable—or that the risk of losing is less tolerable—when the accused is rich, powerful, and able to move campaign donations in the right directions. In that impossible context, we shouldn’t be so quick to condemn private “payoffs,” which may create a cloud of suspicion and disrepute. At least these settlements manage to give a victim some compensation for harm, when her silence is all she has to bargain with.