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. 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 Times noted that, according to the complainant,
Weinstein touched her breast in the context of a conversation about her
becoming a lingerie model; this supposedly complicated for the D.A.’s office 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.

*A previous version of this piece misstated the government entity responsible for Dominique Strauss-Kahn’s perp walk and misstated the timing of a statement made by the Manhattan prosecutor’s office.