The splashy lawsuit filed Wednesday by New York Attorney General Letitia James against Donald Trump and his children is not just frivolous, it is politically punitive and grossly unethical.
What the case lacks in merit it tries to compensate with sheer volume. But the 220-page civil complaint is, from beginning to end, not worth the ink and paper on which it is printed. Naturally, that did not stop two inveterate Trump-haters from prophesizing the demise of the former President.
New York Times reporter Maggie Haberman called it a “sweeping condemnation” and predicted it is “going to sting” more than any other Trump investigations. Not to be outdone, CNN host John King accepted without question James’ accusations by declaring that “the Trump Organization is a sham built on lies.” Yet, neither journalist is a lawyer. They are incompetent to assess whether the lawsuit is sturdy as steel or weak as a dry sandcastle. It is the latter.
The attorney general alleges that Trump committed fraud by inflating or overstating the value of his real estate holdings, businesses, and personal assets to secure loans from banks. But such valuations are notoriously subjective. In appraising his holdings, seeking loans, and filing tax statements, Trump has always relied scrupulously on the judgment and advice of real estate experts, lawyers, and tax accountants. Banks conducted their own due diligence by using separate appraisers and lawyers before approving the loans. Thus, proving that he somehow defrauded lenders by following the counsel of experienced professionals is a high burden that James will struggle to meet.
Try as she may, the attorney general could never find any evidence of criminal wrongdoing. Instead, she resorted to a civil action claiming financial fraud. But in such cases the plaintiff must necessarily prove that a victim was harmed in some economic or non-economic manner. Here, there are no known victims who were injured. Indeed, just the opposite occurred. The banks who loaned Trump money profited handsomely from the transactions when they were repaid with substantial interest. They never sued because they were never harmed. Civil fraud is not a victimless offense.
As I wrote in a column more than a year ago, the behavior of attorney general James is an affront to justice. Before she was even elected, she vowed to exploit the immense powers of that high office to investigate and prosecute then-President Trump. Never mind that she was not privy to any evidence or documents showing that he had violated a single state law. Bereft of facts did not deter her from accusing Trump of “defrauding Americans.” She publicly denounced him as an ‘illegitimate president” and constantly repeated her campaign pledge to take him down.
James’ bitter crusade has always been an investigation in search of a crime or some civil wrong. She prejudged the merits of a case she had yet to bring and promised an outcome that was preordained. The attorney general is under the mistaken impression that her prosecutorial power is an omnipotent weapon that can be used selectively to punish a political nemesis and to advance her own partisan aspirations. Her malign behavior is profoundly unethical.
Under the code of conduct that governs prosecutors in New York, James is duty-bound to be fair and impartial. She must refrain from methods that are calculated to produce prejudice. Her decisions cannot be driven by political bias. Her neutrality must be beyond question such that even the appearance of a conflict of interest is grounds for disqualification.
Throughout her campaign speeches and post-election remarks, James committed herself to a legal course of action against Trump regardless of whether it was warranted and well before she gained access to any relevant evidence or facts. She suffused her campaign rhetoric with strident anti-Trump diatribes. She accused him of conspiring with foreign governments, obstruction of justice, and a “pattern and practice of money laundering.”
James vowed to relentlessly pursue Trump, his organization, his family, and anyone in his orbit. “Taking on President Trump and looking at all the violations of law I think is no match to what I have seen in my lifetime,” she proclaimed. This was before she was even sworn into office.
Compare her remarks to the American Bar Association’s ethical standard 2.1 which reads: “When deciding whether to initiate or continue an investigation, the prosecutor should not be influenced by partisan or other improper political considerations…or hostility or personal animus toward a potential suspect.”
No reasonable person can believe sincerely that James has not breached her ethical duty under this strict professional standard. To the contrary, she obliterated any semblance of fairness and impartiality with a pernicious investigation driven by prejudice. Her hatred of Trump is palpable and laid bare for all to see in her many condemnations of him before she ever opened her investigation.
In response to the lawsuit, Trump’s legal team should move to dismiss the case due to overwhelming evidence of bias. James has flagrantly violated the former president’s due process rights which are designed to protect citizens from abusive legal proceedings. Her own incriminating words can be used against her.
If a motion to dismiss is not granted, Trump could argue what’s known as “selective prosecution” as a procedural defense. That is, he was singled out by James for political and personal reasons, thus violating the guarantee of equal protection under the law.
Once again, the invectives hurled by the attorney general against Trump constitutes strong evidence that she specifically targeted him in an unequal way compared to countless other developers who have utilized the identical methods of calculating real estate values, loans, and tax breaks. In several cases, the U.S. Supreme Court has reminded government lawyers that they are constitutionally forbidden to bring actions “that are motivated by a discriminatory purpose.”
For four years, Attorney General James has been waging an implacable political and personal vendetta against Trump. In so doing, she has sullied her high office and debased the rule of law that was founded on the principle of fundamental fairness.