“One tier of justice for all Americans,” the U.S. Attorney General, Pam Bondi, wrote Thursday on X, shortly after a federal grand jury in Virginia indicted the New York attorney general, Letitia James, on charges of bank fraud and making false statements. Bondi had made a similar point, two weeks before, after the indictment of the former F.B.I. director James Comey. “No one is above the law,” she proclaimed. This self-satisfied triumphalism misconstrues the danger posed by the prosecutions of James and Comey—and by the other cases that President Donald Trump has demanded be brought against his perceived political enemies, which may soon follow. The issue here, contrary to the Administration’s framing, is not that these individuals had previously evaded accountability for allegedly criminal activity. (Those worried about the powerful being able to skirt the law should refer to Trump v. United States, in which the Supreme Court granted Presidents near-complete immunity from criminal prosecution for official acts. Some people, it turns out, actually are above the law.) Rather, the problem with the Trump-directed prosecutions is about a different, and even more pernicious, form of unequal treatment: that this Administration will use the justice system to selectively punish those who incur the President’s wrath. The essence of impartial justice is treating like conduct alike—not identifying the target and then finding the crime.
Trump’s supporters often insist that Democrats, including James, weaponized the justice system against him first. Indeed, James, while running for attorney general back in 2018, had some intemperate and ill-advised words for Trump. “I will never be afraid to challenge this illegitimate President,” she vowed. After she was elected, her statements were even more pointed, and even more arguably improper for a law-enforcement official: “As the next attorney general of his home state, I will be shining a bright light into every dark corner of his real-estate dealings.” In office, James delivered. She brought a civil fraud lawsuit against Trump, his children, and his company, accusing them of having inflated the value of their properties to lenders and insurers in order to obtain more favorable terms. The judge who heard the case, Arthur Engoron, sided with James. “The frauds found here leap off the page and shock the conscience,” he wrote in his decision, imposing a fine that, with interest, grew to more than half a billion dollars. (In August, a divided appeals court ruled that the penalty was excessive, but let the fraud conviction stand so that it could be reviewed by a higher court.)
More to the point, even if James misused her office to go after Trump, the acceptable reaction is not to repeat that offense. Trump may be a self-described counterpuncher, but payback has no place in the “Principles of Federal Prosecution,” the bible that governs how federal prosecutors should conduct themselves. And so the question raised by the indictment of James is: would any other federal prosecutor have brought this case against any other defendant? The indictment is, like the Comey charges, notably lacking in detail—but the answer seems to be a resounding no.
Given that Trump had publicly demanded that James be prosecuted, her indictment was hardly unexpected. The precise fraud alleged, however, was a surprise. In April, Bill Pulte, the head of the Federal Housing Finance Agency, sent the Department of Justice a “criminal referral” that cited James’s 2023 purchase of a house in Norfolk, Virginia. James, Pulte charged, had said on one form that the property would be her “primary residence,” though it was actually for her niece—a fact that James had stated elsewhere. Instead, the indictment focussed on James’s purchase of another house in Norfolk in 2020, for a hundred and thirty-seven thousand dollars. In the process of buying this other property, James had signed a “second-home rider” that, according to the indictment, required her “to occupy and use the property as her secondary residence.” The rider itself, containing standard language from Fannie Mae, stipulated that James would “keep the Property available primarily as a residence for Borrower’s personal use and enjoyment for at least one year.”
The indictment alleges that James did not use the property as her second home; instead, it asserts, she rented the house to a family of three, although it does not provide specifics. It also states that James’s application for homeowner’s insurance described the property as “owner-occupied,” even though her federal tax forms treated it as “rental real estate.” By obtaining the mortgage for a second home rather than for an investment, according to the indictment, James was able to borrow at a lower rate (three per cent as opposed to 3.815 per cent) and receive a larger seller credit. This “scheme and artifice to defraud” lenders “by means of false and fraudulent pretenses, representations and promises” resulted in nearly nineteen thousand dollars in “ill-gotten gains” over the life of the loan, the indictment alleges.
Does all this rise to the level of a crime that federal prosecutors usually pursue? Do these actions constitute “tremendous breaches of the public trust,” as the newly Trump-installed U.S. Attorney Lindsey Halligan, an insurance lawyer with no previous prosecutorial experience, claimed? Federal mortgage-fraud prosecutions are exceptionally rare. In 2024, only thirty-eight people were sentenced for federal mortgage fraud, four more than in the previous year, according to statistics compiled by the United States Sentencing Commission. The amount allegedly at issue in the James case is so paltry that it would not normally draw the attention of federal prosecutors. The fraud that James supposedly committed is seldom prosecuted as a standalone offense. “I do not know of a single instance in which a prosecution was brought based solely on occupancy fraud, much less for renting out a second home,” Adam Levitin, a law professor at Georgetown who specializes in consumer-finance law and mortgage contracts, told me. For example, the former Trump-campaign chair Paul Manafort, was accused of occupancy fraud, after he claimed that his daughter lived in a SoHo condominium in order to obtain a larger mortgage, but it was part of a sprawling twenty-five count indictment. In addition, as Molly Roberts noted on Lawfare, it’s unclear whether James even violated the second-home restrictions; Fannie Mae rewrote the rider language in 2019 to clarify that homeowners can indeed let their properties, even during the first year of ownership. James’s New York State financial-disclosure forms only reported income from the property—between one thousand and five thousand dollars—in a single year, 2020. According to a source familiar with James’s finances, the house was occupied by James’s great-niece, who did not pay rent and has lived there for years.
Even if prosecutors can show that James violated the terms of the loan, they will also face the hurdle of proving that any such deception was intentional. “An occupancy fraud charge like the one brought against James is very hard to prove standing alone because it requires proving that the borrower never intended to keep the occupancy promise,” Levitin observed. It’s no wonder that Halligan’s predecessor reportedly refused to bring the charges against James, and career prosecutors balked as well. “Bottom line: this is a very, very weak case that looks like prosecutorial misconduct, frankly,” Levitin said. “It’s a case that would never be brought if there were not a political vendetta against James.”
This case does not reflect “one tier of justice for all Americans.” Prosecutors, who have limited resources, are supposed to exercise discretion, not exact retribution. The “Principles of Federal Prosecution” caution that a “determination to prosecute represents a policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances.” The indictment of James serves only one fundamental interest: Trump’s insatiable thirst for revenge. ♦
