Topline
The Justice Department indicted New York Attorney General Letitia James Thursday for alleged mortgage fraud, becoming the second of President Donald Trump’s foes to now face criminal charges after former FBI chief James Comey—but those cases could ultimately crumble because of the president’s very public attacks on both of his foes.
James was indicted Thursday on counts of bank fraud and false statements to a financial institution, as prosecutors allege she falsely claimed a property was a second residence rather than an investment property in order to obtain better mortgage terms, which she denies.
Comey (who was arraigned Wednesday) has pleaded not guilty to allegations of making a false statement to Congress.
Both were indicted in the Eastern District of Virginia under charges from a Trump loyalist who replaced the previous U.S. Attorney, after he reportedly did not believe there was sufficient evidence to indict James or Comey.
Comey’s attorney says he intends to argue the charges should be dismissed because the prosecution against him is “vindictive” and “selective,” and James is widely expected to file a similar request.
“Vindictive” or “selective prosecution” claims argue defendants were prosecuted for exercising some kind of constitutional right, while selective prosecutions mean someone was prosecuted based on an “arbitrary classification” like race or religion.
Such arguments are typically very hard to prove in court, since prosecutors have wide latitude to bring charges if they deem them necessary, but legal experts have suggested Trump’s history of having a very public vendetta against James and Comey, and the leadup of events in the Eastern District of Virginia, could give them a better chance at getting the charges thrown out.
Comey’s legal team is expected to file his motion to dismiss the case in the coming days, with a deadline of Oct. 20 for filing the request. His case is set to go to trial in January 2026, if it’s not dismissed sooner. James is set to be arraigned in Virginia on Oct. 24, where she’s expected to plead not guilty, and her attorneys could give more indication then on how they plan to challenge her indictment and whether they’ll file a vindictive or selective prosecution claim.
Vindictive prosecution claims arise when there’s evidence that a defendant has been charged for exercising constitutional rights. For Comey, that could be speaking out against Trump under his First Amendment rights, while James is acting under her legal authority to bring cases against Trump as attorney general. “To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort,” the Supreme Court ruled in 1978. To prove vindictive prosecution, a defendant must give evidence that a prosecutor charged them as an act of retaliation, or more broadly provide evidence that shows a “realistic likelihood of vindictiveness,” Lawfare notes. That’s typically hard to prove, given the difficulty of providing clear evidence that a prosecutorial decision was based solely on vindictive reasons—including for Trump, whose effort to throw out one of his own criminal cases on vindictive prosecution grounds was rejected.
Selective prosecutions broadly arise when a defendant claims that charges were brought against them but not against other people who committed similar acts, and that the decision to prosecute was instead based on some sort of arbitrary characteristic about them, like their race, class or gender. Defendants “must demonstrate that the federal prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose,’” the Supreme Court ruled in 1996. For James and Comey, a selective prosecution claim may arise from allegations that they were discriminated against because they oppose Trump. While that’s different from a more typical category like race or religion, Stanford University criminal law professor David A. Sklansky told The New York Times he “thinks it would be” permissible as a “a political class that is protected against selective prosecution,” pointing to a 1985 case in which a protester was able to gain some protections based on his protest activities.
Trump has spent years publicly attacking Comey and James for their perceived biases against him: Both have been frequent Trump critics, with Comey opening an investigation into whether the Trump campaign colluded with Russia, while James’ office launched dozens of lawsuits against the Trump administration and successfully sued Trump and his company for fraud. Most notably, Trump posted a Truth Social message calling for Attorney General Pam Bondi to prosecute Comey, James and Sen. Adam Schiff, D-Calif., shortly before Comey was indicted, claiming the Trump foes are all “guilty as hell.” “We can’t delay any longer, it’s killing our reputation and credibility,” Trump wrote on Truth Social. (Reportedly, that post was intended to be a private message from Trump to Bondi, but accidently posted on Truth Social instead.) Legal experts have suggested that and his track record of attacks could fuel any vindictive or selective prosecution claims. Trump has “made it so obvious that he’s targeting [his enemies], regardless of the evidence, that I do think a judge would be far more receptive to probably both concepts, selective prosecution and vindictive,” former federal judge Shira Scheindlin told CNN after Comey’s indictment.
The Trump-appointed U.S. attorney in the Eastern District of Virginia, Erik Siebert, stepped down from his role following reports Trump was angry he was not bringing charges against Comey and James, believing there was insufficient evidence. Trump then replaced Siebert with Lindsey Halligan, his former defense attorney who has a background in insurance law and no prosecutorial experience. The charges against Comey were brought only days after her installment as U.S. attorney—and right as the statute of limitations for Comey’s congressional testimony was set to expire—and no lower-ranking prosecutors signed onto the indictment besides Halligan, which legal experts say is unusual. Halligan was similarly the sole signatory on James’ indictment. The sequence of events and media reports indicating Halligan was only installed in the role because she was willing to punish Trump’s enemies, while Siebert would not, may further fuel any vindictive prosecution claims. “The whole flip flop thing and picking a new US attorney who will do what the former US attorney won’t, I mean, that sets off all kinds of red flags,” former federal prosecutor Randall Eliason told CNN.
While Trump’s statements about his political enemies may give more credence to any vindictive prosecution claims, the difficulty of providing those claims in court has made other legal experts skeptical that the president’s enemies will be able to pull it off. “Trump’s being really crass and blatant about the ways he is talking about all that stuff,” former federal prosecutor Samuel W. Buell told The Times. “But I don’t know that that’s going to give rise to a motion that would invalidate a whole prosecution.”
Vindictive prosecution claims are also taking place outside of the Eastern District of Virginia during the second Trump administration—with some success. Kilmar Abrego Garcia, the immigrant who garnered national attention when he was mistakenly deported to El Salvador, only to face criminal charges upon returning to the U.S., had a court victory last week when a judge ruled there’s a “realistic likelihood” that the indictment against Abrego Garcia constituted a vindictive prosecution. The case is still ongoing and Abrego Garcia still has to fully prove that the prosecution was vindictive, but the court ruled there’s enough evidence to move forward with the line of argument. Rep. Monica McIver, who was indicted in New Jersey based on a confrontation with immigration officers when she visited a detention facility, has also argued the case against her should be thrown out on grounds of vindictive and selective prosecution. That request is still pending.
Who could face charges next. Multiple other Trump enemies are also under investigation and could face indictment like James and Comey, including Schiff and former national security advisor John Bolton. The latter could be charged as soon as next week, MSNBC reported Friday, after federal investigators previously searched Bolton’s home and office in August. Trump has suggested he believed Comey’s indictment could be the first in a string of prosecutions, telling reporters in September, “It’s not a list, but I think there’ll be others.”