It was anticipated that the indictment of New York Attorney General Letitia James, as directed by Trump in a message to Attorney General Pam Bondi that was meant to be private but was somehow transmitted by twit, related to a house she purchased for her niece in Norfolk, Virginia in 2023.
That was the mortgage Bill Pulte, director of the Federal Housing Finance Agency who went digging for crimes with which to charge Trump’s enemies, referred to the Justice Department for prosecution. It was also the mortgage for which there was overwhelming exculpatory evidence that no crime occurred. Except that was not the mortgage with which James was charged. That’s the surprise.
The indictment refers to a home Ms. James purchased in Norfolk, Va., in 2020. It accuses her of having said in loan documents that she would use the home as a secondary residence but instead she used the home as a rental property. That, they say, violated her mortgage agreement — which barred her from renting the property — and allowed her to receive favorable loan terms.
The first count of the indictment accuses Ms. James of committing bank fraud by seeking to defraud two financial institutions — OVM Financial and First Savings Bank. The second accuses her of making false statements to OVM Financial.
The alleged proceeds of the crime were underwhelming: a savings in mortgage interest of $17,837 over the 30-year life of the loan, and a savings of $1,096 in closing credits. But if there was fraud, these are the proceeds of a crime whether it’s millions or pennies. The irony of accusing James of making false statements to a financial institution to obtain a better interest rate, similar to the conduct for which James went after Trump, is hard to ignore. Nor is the fact that James campaigned for the AG job by promising to “get” Trump, just as Trump directed his AG to “get” James, among others. There are parallels galore.
What’s unsurprising is that Pam Bondi is doing as she was told. After having installed a loyal cog in the prosecution machine, Bondi is now two down on the Trump enemies list, with “Shifty” Schiff likely to be the next in line. After Bondi’s responses to Schiff in the Senate Oversight Committee hearing, there appears to be little love lost between the two.
If ever there was a case of selective or vindictive prosecution, it was all of these matters, including James’ going after Trump as promised. Selective prosecution is not merely unconstitutional, but wrong. It was wrong when James did it. It’s wrong when Trump/Bondi do it. It is unacceptable to target an individual you hate and dig up a crime with which to prosecute. That James’ action was civil rather than criminal doesn’t make it any less wrong.
At the same time, it doesn’t change the fact that wrongful conduct occurred, even if the prosecution for that conduct violates the Constitution. That’s true of Trump’s lies about the value, not to mention square footage and floors, of his properties. It’s true for James, assuming the allegations against her are true, provable and not contradicted by exculpatory evidence.
Then there is the Halligan problem. Lindsey Halligan, Trump’s former personal lawyer who, despite having no prosecutorial experience whatsoever, replaced career prosecutor and Trump appointed interim United States Attorney, Erik Siebert, is the only person who signed the indictment. She did so as the United States Attorney for the Eastern District of Virginia.
There are two problems with that. The first is that no other attorney in the office was willing to put their name to the indictment, strongly suggesting that the accusations were so lacking in merit that the career prosecutors in the office were ethically precluded from involvement. The second is that Halligan isn’t the US Attorney, according to a 1986 Office of Legal Counsel opinion written by none other than Sam Alito.
The president gets to appoint an interim US Attorney for 120 days. Seibert filled that position. After that, it’s left to the District Court to fill the position. Needless to say, the court didn’t put Halligan in the job. That would mean Halligan is just some rando who can’t present a case to a grand jury on behalf of the United States and whose performance of acts as a United States Attorney are a nullity.
What remains unclear is whether that means the indictment gets tossed as the remedy for Halligan’s lack of authority. That she presented the case and signed the indictment militates for it being treated as a nullity, albeit without prejudice perhaps, but the remedy remains unclear because stuff like this just doesn’t happen. There is scant precedent or caselaw to guide a court in dealing with this problem, although given that this has now happened a number of times with Trump, a body of law is likely to be developed now.
The issues raised by the defenses of selective prosecution and the Halligan mess may well be more than sufficient to give rise to dismissal of the indictment. But there remains the question of whether James in fact did what she is accused of doing, just as Trump did what he was accused of doing. It was bad conduct by Trump, even though he was re-elected despite a very long list of bad conduct.
But James is the Attorney General of the State of New York, and nobody elected her knowing she committed fraud in her application for the 2020 mortgage. Attorneys general shouldn’t be committing crimes, even if they aren’t convicted because of selective prosecution and prosecutorial impropriety. Perhaps there is a strong factual defense to the allegations and James did nothing wrong, but even if the case is dismissed for reasons having nothing to do with the facts, James still needs to deal with the accusation against her. And that shouldn’t come as a surprise.