Choosing which laws to enforce and which cases to pursue is an inherently political decision. Resources are limited, and priorities must be set. But when electing law enforcement officials, especially a state’s highest law enforcement official, voters should ask candidates to base their decisions on the facts and the law. New York Attorney General Letitia James admitted last week that neither the facts nor the law guide her enforcement decisions. People paying attention to her past actions already knew this, but she has now confessed it in public.
In her debate with her impressive Republican challenger Saritha Komatireddy last week, the candidates were asked whether prediction markets should be regulated by the state or federal government. James answered by noting that her office had already sued two. Komatireddy deferred, noting that the case was pending and was an “important one,” and that she would have to “look at the facts and the law” before taking a position. James responded, “You don’t have to look at the facts and the law. All you have to do is study what they do. It is illegal in the state of New York.”
Setting aside the fact that both gambling apps FanDuel and DraftKings are legal in New York, and that Kalshi is already regulated by the Commodity Futures Trading Commission, James’s claim that the facts and the law do not need to be consulted before making prosecutorial decisions is lamentably consistent with her hyperpartisan and prejudicial record as attorney general.
Consider her civil fraud suit against President Donald Trump. James used New York’s Executive Law Section 63(12), enacted in 1956 to protect consumers from repeat fraudsters. The law empowers the state to intervene when individual consumer losses are too small to justify private lawsuits. But James applied that consumer protection law to loans negotiated between Trump’s businesses and sophisticated financial actors.
She alleged that Trump inflated property values to obtain favorable loans from institutions such as Deutsche Bank. But Deutsche Bank not only conducted its own assessment of Trump’s assets rather than relying on his valuations, but also received repayment in full and on time. The bank never complained to anyone because no harm was done to anyone.
But James sued anyway for partisan political reasons. She wanted to cripple a presidential candidate of the opposing party with a ruinous civil judgment. Thankfully, an appeals court threw out the financial penalty James secured at trial, and Trump is appealing the civil fraud finding to New York’s highest court. But not every candidate has the financial means to fight maliciously partisan lawsuits like the one James pursued against Trump.
NEW YORK’S LAWFARE THREAT TO DEMOCRACY
Now James is bringing the same habit of prejudgment to the Cornell sexual assault investigation. Four days before Gov. Kathy Hochul (D-NY) appointed her as special prosecutor, James wrote on social media, “What this young woman has been forced to endure is horrific and unacceptable,” and concluded, “We stand with you.” Asked about her statement after her appointment, James refused to discuss it.
James does not have a monopoly on politicized prosecutions. Trump’s Department of Justice has speciously prosecuted her and other Democrats for mortgage fraud. And these tit-for-tat prosecutions undermine everyone’s faith in the justice system. But if Democrats send James back to office this November, they will have forfeited all right to complain about Trump.