Trump v. Letitia James—Hypocrisy and Vengeance in the Palace of Justice

If there was ever a textbook case of selective prosecution, the Justice Department investigation of New York Attorney General Letitia James appears to be it.

“Main Justice” is focusing on a mortgage application in which James attested that she intended to make a single-family home in Norfolk, Virginia, her primary residence, when the principal occupant would be her niece. James wouldn’t reside there at all. It is important whether the mortgage is for a primary or a secondary home because a primary home gets more favorable loan terms, like lower interest rates, and a statute of Congress criminalizes the making of any false claims to a mortgage lender, irrespective of whether anyone lost any money.

Other documents repeatedly stated that James would not live in the Norfolk home. According to James’s attorney, the renowned Washington, D.C. lawyer Abbe Lowell, Trump officials ignored her all-caps statement two weeks earlier to the mortgage loan broker that “[t]his property WILL NOT be my primary residence.” Lowell argued that the authorities had “cherry-picked” one mistake in an application package and ignored other exculpatory documents. James stated multiple times that she would not reside in the Norfolk home.

There is also an allegation that James misrepresented the number of units in a brownstone she’s owned in Brooklyn since 2001. The application said five. It was four. This was corrected. This is a case? If that’s all there is to it, it all seems like what we called in the office when I was a federal prosecutor, a bullshit case.

For years, Trump has deplored what he called Joe Biden’s “weaponization” of the Justice Department, the “politicization” of its charges for engaging in an insurrection and mishandling classified documents in Mar-a-Lago, and the civil and criminal cases brought against him by James and New York County District Attorney Alvin Bragg, both Democrats.

Bragg won a jury verdict against Trump, convicting him on 34 felony counts of falsification of business records. James sued Trump and the Trump Organization, obtaining a $450 million judgment against him in penalties plus interest for a long-running fraud scheme in which Talk about false statements to lenders! Trump and his executives were found to have purposely misrepresented property values and other assets to get better loans and insurance rates. During the 11-week trial, Trump and his satraps savaged James, using his typical fusillade of derogatory terms. According to him, “Letitia Peekaboo James” is “racist,” “biased and corrupt,” and “failing.” Trump accused her office of trying to prevent him from getting reelected. He is appealing the judgment.

Since Trump returned to the White House this year, James has been a thorn in his side. She has been involved in several bedeviling lawsuits against his administration, including its elimination of school grants and attempts to end birthright citizenship. She joined multiple challenges against the first Trump administration.

I don’t like Letitia James either. She is too much of a political apparatchik for my taste. I don’t like what she did to Governor Andrew Cuomo, hounding him out of office when she had an eye on his job. She issued a report branding him as a sexual harasser and never gave him an adequate chance to respond. Cuomo was later cleared of criminal conduct, and one woman who made serious allegations later withdrew her claims. Cuomo denied (and continues to deny) any wrongdoing.

I don’t like it that she ran for office on a plank of getting Donald Trump and then proceeded to do just that. Responsible lawyers don’t act that way.

I do, however, admire James’s backbone. She was far more courageous than what we have seen from some of the largest law firms in the country in standing up to Trump’s threats and personal attacks. But, for Trump to investigate and possibly prosecute James because he has private reasons for hating her is vindictive, retaliatory, and hypocritical. We don’t do that in America.

No one could have better elaborated the point lurking in the Trump-versus-James vendetta than Attorney General (later Justice) Robert Jackson in his famed speech to United States Attorneys on April 1, 1940, about prosecutorial ethics:

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass…and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

On Inauguration Day this year, Trump issued an executive order instigating his campaign of retribution. The order provided, among other things:

The American people have witnessed the previous administration engage in a systematic campaign against its perceived political opponents, weaponizing the legal force of numerous Federal law enforcement agencies … against those perceived political opponents in the form of investigations, prosecutions, civil enforcement actions, and other related actions. These actions appear oriented more toward inflicting political pain than toward pursuing actual justice or legitimate governmental objectives. Many of these activities appear to be inconsistent with the Constitution and/or the laws of the United States, including those activities directed at … Americans who spoke out against the previous administration’s actions, and other Americans who were simply exercising constitutionally protected rights. The prior administration and allies throughout the country engaged in an unprecedented, third-world weaponization of prosecutorial power to upend the democratic process. It targeted individuals who voiced opposition to the prior administration’s policies with numerous Federal investigations and politically motivated funding revocations, which cost Americans access to needed services.

Tell that to the law firms Paul Weiss and Perkins Coie, the cancer researchers funded by the National Institutes of Health, or the U.S. Agency for International Development workers striving to eliminate HIV in Africa. The executive order is an execration. All lawsuits involving public figures are, in some sense, political.

Weaponization? Fair public prosecutions are a legitimate weapon society uses to enforce the rule of law.

As soon as she was confirmed, Attorney General Pam Bondi moved to do her master’s bidding. Launching what she termed a “weaponization working group” (a Mussolini -tyle bureau soon to be headed by Ed Martin, just rejected by the Senate as U.S. Attorney in D.C., in part, for supporting the “Stop the Steal” movement) she ordered an investigation of instances of “politicized justice” during President Joe Biden’s administration. The order, which identifies James and District Attorney Bragg, directs prosecutors to investigate any role federal authorities may have played in assisting investigations of Trump.

There is a legal doctrine known as vindictive/selective prosecution, which can get a conviction reversed. This is just the unethical practice Robert Jackson condemned. While it is usually a difficult argument to run, the Bondi Justice Department is a defense lawyer’s dream come true. For starters, Martin posted on Elon Musk’s X about how Jack Smith had received $140,000 in free legal services from the august D.C. law firm of Covington & Burling, raving, “Save your receipts, Smith and Covington. We’ll be in touch soon.” A dire threat, but where’s the case?

Courts take a dim view of prosecutors who engage in this kind of behavior. As Justice George Sutherland wrote in a 1935 opinion, while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.”

James’s lawyer, Lowell, wrote a sizzling letter to Bondi saying any errors by his client were paperwork mistakes. He dismissed the criminal referral as the Trump administration’s “latest act of improper political retribution … publicly instigated by President Trump.”

Lowell’s letter went on to say:

“The stunning hypocrisy of President Trump’s complaint that the Justice Department had been ‘politicized’ and ‘weaponized’ against him is laid bare as he and others in his Administration are now asking you to undertake the very same practice.”

Bondi, who told senators at her confirmation hearing that “politics will not play a part” in her decision-making, singled out James in one of her first acts as attorney general.

We will see whether Bondi prosecutes James for falsifying bank documents and property records. The justice system was not meant to be vengeful, retributive, or retaliatory. The only value to be vindicated is the rule of law.

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