In the same jurisdiction in which the Trump Justice Department indicted former FBI Director James Comey more than a week ago, the same prosecutor who brought that case has now gone after another Trump enemy: New York Attorney General Letitia “Tish” James. (Disclosure: I worked as a volunteer member of James’ transition team after her election in 2018.)
The reason for the indictment? James is accused of having falsified a mortgage application on a property purchased in Virginia. The extent of the harm she is alleged to have caused? About $18,000.
Whether the prosecution will ultimately be able to prove the case against James remains to be seen. What seems more likely is that James will be able to get the case dismissed, because it could be classified as an unconstitutional selective prosecution.
Donald Trump has railed against and threatened to prosecute James once he retook power, after she brought a civil action against him for … mortgage fraud.
James is charged with having engaged in mortgage fraud and making false statements to a financial institution. The case appears to rest on flimsy and conflicting evidence at best, has been brought on grounds that are rarely prosecuted and was filed over the objection of career lawyers within the Justice Department who did not think there was probable cause to bring the case.
What the government will have to prove in establishing the charges before a jury is that James knowingly lied when she claimed that she intended to use the home as a secondary residence at the time of the application. That is something the prosecution will have to prove beyond a reasonable doubt. Other evidence that James appears to be able to present will likely contradict that case. It will be up to the jury to decide if the prosecution can meet that burden. But there is a good chance a jury will never hear this case.
Donald Trump has railed against and threatened to prosecute James once he retook power, after she brought a civil action against him for … mortgage fraud. James won that case in New York and secured a nearly $500 million judgment against Trump, several members of his family and some of his businesses. That damages award has been overturned on appeal, and what damages should be paid is an issue that is pending final resolution. The underlying verdict that Trump committed fraud still stands, however.
While James has professed her innocence, she has another potential response to this indictment: that the prosecution itself violates the constitutional prohibition against what is known as selective prosecution.
The concept of selective prosecution is one recognized by the U.S. Supreme Court. It occurs when a prosecution is brought for an improper purpose and an improper discriminatory effect. Courts generally recognize that prosecutors have wide discretion to prosecute cases as they see fit — but that discretion is not without limits. Still, establishing a claim of selective enforcement requires the defendant to meet a fairly high bar. From the publicly available information about her case and others, James would appear to be able to make out a good case that this action against her qualifies as a selective — and therefore unconstitutional — prosecution.
According to the Supreme Court, a selective prosecution claim is available to someone who says that the prosecution “had a discriminatory effect” and “was motivated by a discriminatory purpose.” For example, that the prosecution was brought based on the defendant’s race or gender, or as a form of punishment for asserting a protected constitutional right.
It is hard to escape the conclusion that James is being prosecuted simply because, in carrying out her functions as a state attorney general, she enforced the law against the person who is currently president.
A prosecution of a state official for doing their job in enforcing federal law would fly in the face of critical free speech and federalism principles — in violation of the 1st and 10th Amendments to the U.S. Constitution. It is hard to escape the conclusion that James is being prosecuted simply because she enforced the law against the person who is currently president. Again, a claim of selective prosecution is hard to establish. Still, the evidence for James to try to make out this claim is in plain sight, but even that evidence may be but the tip of the iceberg. In September, the president took to Truth Social to implore Attorney General Pam Bondi to commence prosecutions against several of his enemies. (It seems quite possible that this message was not meant to be a public communication.) Are there more communications like that that were not made public? What was the scope of the investigation into mortgage fraud by James and others? Why were these investigations even commenced? Was it simply a case of presenting a list of individuals to the Justice Department with the directive to find a crime, any crime? What steps has the administration taken to investigate the allegations that others in the administration engaged in similar conduct? If James can present some initial evidence that the case against her constitutes an unconstitutional selective prosecution, she will then be able to explore some of these other factual questions. From publicly reported information, the criminal case against James appears to rely on a somewhat flimsy evidentiary basis. At the same time, what we do know already from publicly available information, with some of it containing the public statements and missives of the president himself, the evidence that this was a selective prosecution may be overwhelming.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
