“One level of justice for all Americans,” said U.S. Attorney General Pam Bondi. wrote Thursday on X, shortly after a federal grand jury in Virginia indicted New York Attorney General Letitia James on charges of bank fraud and making false statements. Bondi made a similar point two weeks ago, following the indictment of the former FBI director. James Comey. “No one is above the law,” she said. This self-righteous triumphalism misconstrues the danger posed by the prosecutions of James and Comey, as well as other cases that the president Donald Trump demanded that his perceived political enemies be brought to justice, which may soon follow. The problem here, contrary to the administration's language, is not that these men have previously evaded accountability for their alleged criminal activity. (Those concerned that powerful people will be able to circumvent the law should contact Trump vs USAin which the Supreme Court granted presidents almost complete immunity from criminal prosecution for official actions. It turns out that some people are actually above the law.) Rather, the problem with Trump's prosecutions is another, even more pernicious form of unequal treatment: the current administration will use the justice system to selectively punish those who incur the president's wrath. The essence of impartial justice is to treat similar behavior equally, not to identify the target and then discover the crime.
Trump supporters often insist that Democrats, including James, were the first to use the justice system against him. Indeed, James, while running for attorney general back in 2018, said some intemperate and reckless things about Trump. “I will never be afraid to challenge this illegitimate president,” she vowed. After she was elected, her statements became even more strident and perhaps even more inappropriate for a law enforcement official: “As the next Attorney General of his home state, I will shine a bright light into every dark corner of his real estate dealings.” In the office, James spoke. She filed a civil fraud lawsuit against Trump, his children and his company, accusing them of inflating the value of their properties to lenders and insurers to get better terms. The judge hearing the case, Arthur Engoron, sided with James. “The frauds discovered here leap off the page and shock the conscience,” he wrote in his decision, imposing a fine that, along with interest, grew to more than half a billion dollars. (In August, a divided appeals court ruled that the punishment was excessive but upheld the sentence so it could be reviewed by a higher court.)
Moreover, even if James abused her office to go after Trump, the acceptable response would be not to repeat the crime. Trump may be a self-proclaimed counter-punch, but reckoning has no place in the Principles of Federal Prosecution, the Bible that defines how federal prosecutors should conduct themselves. So the question raised by the indictment against James is this: Would any other federal prosecutor have brought this case against a different defendant? The indictment, like Comey's, is conspicuously lacking in detail, but the answer appears to be a resounding “no.”
Given that Trump has publicly demanded James be prosecuted, her accusation was hardly surprising. However, the specific alleged fraud came as a surprise. In April, Bill Pulte, head of the Federal Housing Finance Agency, sent a “criminal referral” to the Justice Department that referenced James' 2023 purchase of a home in Norfolk, Virginia. James, Pulte charged, indicated in one document that the property would be her “principal residence,” when in fact it was intended for her niece—a fact James has stated elsewhere. Instead, the indictment involved James purchasing another home in Norfolk in 2020 for one hundred and thirty-seven thousand dollars. In the process of purchasing this other property, James signed a “second home agreement,” which required her to “occupy and use this property as her secondary residence,” according to the indictment. The offer itself, containing standard Fannie Mae language, stipulated that James would “maintain the property as a residence primarily for the personal use and enjoyment of the Borrower for a minimum of one year.”
The indictment alleges that James did not use the property as her second home; instead, it alleges, she rented the house to a family of three, although it does not provide details. It also says James' homeowner's insurance application described the property as “owner-occupied” even though it was treated as a “rental property” on her federal tax returns. By getting a mortgage on a second home rather than an investment, James was able to borrow at a lower rate (three percent instead of 3.815 percent) and obtain a larger seller's loan, according to the indictment. This “scheme and ploy to defraud” lenders “through false and fraudulent pretenses, representations and promises” resulted in nearly nineteen thousand dollars in “illegal profits” over the life of the loan, the indictment alleges.
Does this all rise to the level of a crime that federal prosecutors typically prosecute? Are these actions a “huge violation of the public trust,” as Trump's newly appointed U.S. Attorney Lindsey Halligan, an insurance lawyer with no previous prosecutorial experience, said? Federal prosecutions for mortgage fraud are extremely rare. According to statistics compiled by the U.S. Sentencing Commission, only thirty-eight people were convicted of federal mortgage fraud in 2024, an increase of four from the previous year. The amount allegedly at stake in James' case is so minuscule that it usually doesn't attract the attention of federal prosecutors. The fraud James allegedly committed is rarely prosecuted as a separate crime. “I don’t know of a single case where a prosecution has been brought solely on the basis of housing fraud, much less second-home rental,” Adam Levitin, a Georgetown law professor who specializes in consumer finance law and mortgage contracts, told me. For example, former Trump campaign chairman Paul Manafort was charged with housing fraud after he claimed his daughter lived in a SoHo condominium to get a larger mortgage, but this was part of a broad twenty-five-count indictment. Also like Molly Roberts marked on LegalityIt is unclear whether James violated the restrictions on owning a second home at all; Fannie Mae rewrote the rules in 2019 to clarify that homeowners can indeed rent out their properties, even during the first year of ownership. James' New York State financial reporting forms show real estate income ranging from one thousand to five thousand dollars for 2020 alone. According to a source familiar with James' finances, the house was occupied by James' great-niece, who did not pay rent and lived there for many years.
Even if prosecutors can prove that James violated the terms of the loan, they will also face the challenge of proving that any such deception was intentional. “A housing fraud charge like the one brought against James is very difficult to prove on its own because it requires proof that the borrower never intended to keep his promise to rent the home,” Levitin noted. Unsurprisingly, Halligan's predecessor reportedly declined to press charges against James, and career prosecutors also declined. “Bottom line: this is a very, very weak case that, frankly, looks like prosecutorial misconduct,” Levitin said. “This case would never have been brought forward if there had not been a political vendetta against James.”
This case does not reflect “the same level of justice for all Americans.” Prosecutors, with limited resources, should exercise discretion rather than demand harsh retribution. The Principles of Federal Prosecution warns that “the decision to prosecute is a political judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances.” Blaming James serves only one fundamental interest: Trump's insatiable thirst for revenge. ♦
