The Problem with Selective Prosecution – Your Day Will Come

New York, NY - May 26, 2022: Attorney General Letitia James speaks during joint announcement with mayor Eric Adams at AG New York office.

​New York Attorney General Letitia James appears to have been hoisted by her own petard… Wait a minute, what’s a petard?

The phrase comes from William Shakespeare’s Hamlet. A petard was a compressed pot of gunpowder, a kind of Reformation-era grenade. In modern English, this phrase means being blown up with your own weapon.

For President Trump’s most ardent defenders, James’ predicament – being charged by the Department of Justice for bank fraud and making false statements – is more than deeply ironic. For them, it is like a fine liquor to roll across one’s tongue and savor.

Consider: James ran for her office by making an explicit promise to get Donald Trump for… something.

Once elected, she brought a civil action against then-private citizen Donald Trump and the Trump Organization for exaggerating his wealth while seeking a commercial loan. The former and future president was fined $515 million, even though his lender – a former Deutsche bank executive – testified that Trump was a model borrower. An appeals court later slashed the amount of the fine.

“Today, justice has been served,” James said in reaction to her courtroom win. “This is a tremendous victory for this state, this nation, and for everyone who believes that we must all play by the same rules – even former presidents.”

Now James is facing federal charges for making false statements regarding her renting of a second home in Virginia. If convicted, James could face a fine of up to $1 million, and a possible (though unlikely) 30 years in prison.

James’ own words are being thrown in her face – “we must all play by the same rules.”

The satisfying taste of irony may turn bitter for James’ critics. Politico reports that the indictment omitted the fact that James’ Second Home Rider explicity mentioned “short-term rentals.”

This story follows on the heels of the president’s attempted firing of Federal Reserve Board Governor Lisa Cook “for cause” – now stayed by the courts – for allegedly claiming two properties as her primary residences. If she lied, she could have obtained better mortgage terms – not a good look for someone who regulates national interest rates.

As with the James case, however, the facts are murky. It is reported that Cook characterized one property as a “vacation home” in a loan estimate.

The administration’s mortgage police at the Federal Housing Finance Agency referred another bête noire, Sen. Adam Schiff (D-CA), to the Department of Justice on a mortgage issue.

What to make of all this?

The original sin in this train of abuses was Attorney General James’ pursuit of civil charges against a former president and political enemy whom she had promised voters to ruin in court. This was compounded by Manhattan District Attorney Alvin Bragg’s prosecution of Donald Trump for his hush-money payoff to porn star Stormy Daniels – spun by Bragg into 34 felony counts, including, somehow, violations of election law.

Now, on the theory that turnabout is fair play, the administration is targeting its former tormentors. Some of the cases – against former FBI Director James Comey and former National Security Advisor John Bolton – are complicated. For example, Comey was at best disingenuous in how he used the FBI to plant stories about Russian collusion from a source that he knew was dodgy. In both cases, however, these men have clearly been targeted out of animus. The scrupulous attention given to Bolton’s treatment of classified material, which prompted an FBI raid on his home, is clearly payback for writing a tell-all about the former advisor’s work in the first Trump White House.

Worse, the James-Cook-Schiff mortgage cases are not the result of a general crackdown. It appears that political appointees are selectively pulling mortgages of enemies for close examination.

On a human level, the instinct for payback is understandable. But if Republicans and Democrats keep targeting each other for prosecution, the U.S. political arena will come to resemble that of Moscow, where prosecutors are always ready to follow up on the promise of Stalin’s police chief, Lavrentiy Beria, who famously said: “Show me the man, and I’ll show you the crime.”

If selective prosecution is institutionalized, expect this weapon to be turned around once again against the people who now wield it.
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Petards are being thrown, right and left. Keep it up, and everyone will be hoisted.

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