The Trump administration is grasping at straws in its efforts to investigate Federal Reserve Board member Lisa Cook, New York Attorney General Letitia James, former FBI Director James Comey and Sen. Adam Schiff, D-Calif. These efforts have yielded so little evidence of criminal conduct that the acting U.S. attorney tasked with investigating several of them was forced to step down because of pressure from the White House.
Yet it has recently come to light that the Trump FBI and Justice Department closed down an investigation into one of the administration’s own — “border czar” Tom Homan — who appears to have been recorded as part of a federal investigation accepting $50,000 in cash after he indicated he could help secure contracts with the administration if Trump was elected in 2024. The Homan investigation is yet another example of the Trump administration’s feigning a commitment to law and order while ignoring both potential and real criminal conduct happening right under its proverbial nose.
A bedrock principle of the rule of law is that it must be applied with generality, meaning all must enjoy equality before the law.
In recent months, the president has claimed that blue-state cities run by Democratic mayors are lawless hellscapes, so much so that he has called in the National Guard to patrol the streets of Los Angeles and the District of Columbia. This despite the fact that one of the first acts of the second Trump presidency was to pardon more than 1,500 Jan. 6 rioters: that is, a band who literally made the U.S. Capitol itself a scene of unprovoked violence and bloodshed, where over 140 law enforcement officers were wounded, with five of them dying since the fateful events of that day. What is more, several of those taking part in the events of Jan. 6 have allegedly gone on to commit additional crimes since they received pardons from the president.
Another legal tool to try to skewer the president’s enemies has emerged: that certain political figures have engaged in mortgage fraud, when they are alleged to have taken out mortgages on properties and claimed that the properties would be their primary residences. Even though it became apparent that some people in the president’s Cabinet have also engaged in potentially questionable mortgage practices, this tool is being wielded only against adversaries of the president, like James and Schiff, or those he would like to get out of his way, like Lisa Cook. In Cook’s case, the president wants to remove her from her position as a governor of the Federal Reserve Board so he can replace her with someone who will do his bidding, rather than engage in honest fiscal policy free from political influence.
But the investigations into this form of alleged fraud in the case of Attorney General James have yielded little in terms of concrete evidence that any crimes have been committed by anyone. An investigation into Comey’s involvement in the Mueller investigation from the first Trump presidency appeared to be bringing about little in the way of indictable offenses. The cases are so weak that Eric Siebert, who was until last week the acting U.S. attorney for the Eastern District of Virginia who was investigating James and Comey, was reluctant to bring cases against any of them because there was insufficient evidence to justify indictments in either case. That did not stop the president from pressuring Siebert to bring the cases anyway or step down, which he did Friday.
In another case, the Justice Department faced the resignations of local assistant U.S. attorneys asked to dismiss a case, not because the case was too weak, but because it was quite strong. There, New York Mayor Eric Adams had been indicted for alleged corruption, but leadership at the Justice Department — including former Deputy Attorney General Emil Bove, who has since been confirmed to a lifetime appointment as a federal appeals court judge — reportedly urged local prosecutors to dismiss the case against Adams. The reason for seeking that dismissal? It is alleged that Adams may have cut a deal to support the Trump administration’s immigration policies. And with whom was that deal supposedly struck? Tom Homan. (Homan, however, denied any impropriety in his working with Mayor Adams to gain access to the city jail at Rikers Island as part of immigration enforcement. Adams also denied any wrongdoing.) Which brings us back to his case. Over the weekend, MSNBC reported that Homan was allegedly recorded accepting $50,000 from undercover FBI agents as part of a corruption sting. According to multiple people familiar with the probe and internal documents reviewed, Homan was captured on an audio recording accepting the cash in the lead-up to the 2024 election after he indicated he would help the agents who posed as business executives to obtain contracts in a second Trump presidency, allegations the administration appears to dispute. Nevertheless, after Trump announced he would name Homan as his so-called border czar in November, the administration’s new appointees at the Justice Department, who took over in January, then closed the investigation. (The White House denied that Homan accepted the cash or that he had a role in awarding contracts. Homan said in an interview with Fox News on Monday: “I did nothing criminal. I did nothing illegal.”) There’s the rule of law for Trump’s foes, but the rule of law is optional for his allies. In addition, last month, another person with a leadership role in the Justice Department, Todd Blanche (who, like Bove, was as one of the president’s former personal attorneys) interviewed convicted sex trafficker Ghislaine Maxwell. It does not appear that he spoke with others with knowledge of Maxwell and Jeffrey Epstein’s crimes, like their victims. And the Justice Department had previously fired the prosecutor who worked on the prosecutions of both Epstein and Maxwell. Nevertheless, he conducted the interview and breezed past statements by Maxwell with no apparent follow-up, like when she said that some members of the president’s inner circle were also involved with Epstein. A bedrock principle of the rule of law is that it must be applied with generality, meaning all must enjoy equality before the law. One would be hard-pressed to find such equal treatment by the law and the legal system in the first nine months of Trump’s second presidency. There’s the rule of law for Trump’s foes, but the rule of law is optional for his allies.
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.” 
