“One level of justice for all Americans,” 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 for bank fraud and making false statements. Bondi had made a similar point two weeks earlier after the indictment of former FBI Director James Comey. “No one is above the law,” she proclaimed. This smug triumphalism misinterprets the danger posed by the charges against James and Comey — and by other charges that President Donald Trump has sought against his perceived political enemies, and which may soon follow. The problem here, contrary to what the administration claims, is not that these individuals had previously escaped accountability for allegedly criminal activities. (Those who fear that the powerful can circumvent the law should look to Trump v. United States, in which the Supreme Court granted presidents near-total immunity from criminal prosecution for official acts. It turns out that some people are actually above the law.) Rather, the problem with the Trump-ordered prosecutions lies in a different, and even more pernicious, form of unequal treatment : This administration will use the justice system to selectively punish those who fall foul of the law. The president’s anger. The essence of impartial justice is to treat the same behaviors in the same way, without identifying the target and then discovering the crime.
Trump supporters often insist that Democrats, including James, first weaponized the justice system against him. Indeed, James, while running for attorney general in 2018, made intemperate and ill-advised comments about Trump. “I will never be afraid to challenge this illegitimate president,” she promised. After his election, his statements were even more pointed, and even more arguably inappropriate for a law enforcement official: “As the next attorney general of his home state, I will shine a light on every dark corner of his real estate dealings.” » In power, James kept his promises. She filed a civil fraud suit against Trump, his children and his company, accusing them of inflating the value of their properties with lenders and insurers in order to obtain more favorable terms. The judge who heard the case, Arthur Engoron, sided with James. “The frauds discovered here are obvious and shock the conscience,” he wrote in his decision, imposing a fine which, with interest, amounts to more than half a billion dollars. (In August, a divided appeals court ruled that the punishment 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 abused his office to attack Trump, the acceptable response is not to repeat this offense. Trump may portray himself as a counterattacker, but revenge has no place in the “Principles of Federal Prosecutions,” the bible that governs how federal prosecutors must behave. So the question raised by James’ indictment is: Would another federal prosecutor have brought this action against another defendant? The indictment, like the accusations against Comey, is notably lacking in detail, but the answer appears to be a resounding no.
Given that Trump had publicly called for James to be prosecuted, his indictment was hardly unexpected. However, the alleged fraud was a surprise. In April, Bill Pulte, director of the Federal Housing Finance Agency, sent the Justice Department a “criminal referral” citing James’ 2023 purchase of a home in Norfolk, Virginia. James, accused by Pulte, had stated on a form that the property would be his “primary residence”, although it was in fact his niece’s – a fact James had stated elsewhere. Instead, the indictment focused on James’ purchase of another home in Norfolk in 2020, for one hundred and thirty-seven thousand dollars. When purchasing this other property, James signed a “second home addendum” which, according to the indictment, required him “to occupy and use the property as a second home.” The addendum itself, containing standard Fannie Mae language, stated that James would “keep the property available primarily as a residence for the borrower’s personal use and enjoyment for at least one year.”
The indictment alleges that James did not use the property as a second home; instead, he claims, she rented the house to a family of three, without providing details. It also says James’ homeowners insurance application described the property as “owner-occupied” even though his federal tax forms treated it as “rental real estate.” By obtaining the mortgage for a second home rather than an investment, according to the indictment, James was able to borrow at a lower rate (three percent versus 3.815 percent) and receive greater 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, according to the indictment.
Does all of this rise to the level of a crime that federal prosecutors usually pursue? Are these actions “egregious abuses of the public trust,” as Trump’s newly appointed U.S. Attorney Lindsey Halligan, an insurance lawyer with no prior prosecutorial experience, claimed? Federal prosecutions for mortgage fraud are exceptionally rare. In 2024, only thirty-eight people have been convicted of federal mortgage fraud, four more than the previous year, according to statistics compiled by the United States Sentencing Commission. The amount allegedly at issue in James’ case is so paltry that it would not normally attract the attention of federal prosecutors. The fraud that James allegedly committed is rarely prosecuted as a standalone crime. “I don’t know of a single case in which a lawsuit was filed solely for occupancy fraud, much less for rental of a second home,” 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 tenure fraud after claiming his daughter was living in a SoHo condominium in order to get a larger mortgage, but this was part of a larger twenty-five count indictment. Additionally, as Molly Roberts noted in Rightit is unclear whether James even violated the restrictions on second homes; Fannie Mae rewrote the rider text in 2019 to clarify that homeowners can actually rent their property, even during the first year of ownership. James’ 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’ finances, the house was occupied by James’ great-niece, who did not pay rent and had lived there for years.
Even if prosecutors can demonstrate that James violated the terms of the loan, they will also face the hurdle of proving that such deception was intentional. “An occupancy fraud charge like the one against James is very difficult to prove on its own because it requires proving that the borrower never intended to fulfill the promise of occupancy,” Levitin observed. It’s no wonder that Halligan’s predecessor declined to file charges against James, and that career prosecutors were similarly hesitant. “Bottom line: This is a very, very weak case that frankly looks like prosecutorial malpractice,” Levitin said. “This is a case that would never be brought if there was not a political vendetta against James.”
This case does not reflect “a single level of justice for all Americans.” Prosecutors, who have limited resources, are expected to exercise discretion and not exact retaliation. The “Principles of Federal Prosecution” warn that a “decision to prosecute represents a political 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. ♦
