Columns, Criminal law, Politics

Letitia James May be Winning the Lawfare but Losing the War

Below is my column in the Hill on the rough week for New York Attorney General Letitia James in court. James has campaigned on lawfare and the Democratic New York voters have wildly supported her weaponization of the legal system against Trump and others. Now some judges are balking…

Here is the column:

In an age of lawfare, New York Attorney General Letitia James has always embraced the total war option. Her very appeal has been her willingness to use any means against political opponents.

James first ran for her office by pledging to bag Donald Trump on something, anything. She did not specify the violation, only that she would deliver the ultimate trophy kill for Democratic voters. James follows the view of what Prussian General Carl von Clausewitz said about war, law is merely politics “by other means.”

Yet, the political success of James in weaponizing her office has been in stark contrast with her legal setbacks in courts.

James earlier sought to use her office to disband the National Rifle Association, the most powerful gun rights organization in the country, due to self-dealing and corruption of executives. James notably did not target liberal groups accused of similar violations. The ridiculous effort to disband the NRA collapsed in court.

It did not matter. James knew that such efforts were performative and that New York voters did not care if such attacks failed. She will continue to win the lawfare battles, even if she loses the war.

This week, two of James’s best-known campaigns were struggling in court.

James is best known for her fraud case against Trump, in which she secured a $464 million fine and a ban on Trump from the New York real estate business for three years. That penalty, which has now risen to $489 million with interest, was in a case where no one had lost a dime due to the alleged inaccurate property valuations in bank loans secured by the Trump organization. Not only where the banks fully paid on the loans and made considerable profits, but they wanted to make additional loans to the Trump organization.

In appellate arguments this week, James’s office faced openly skeptical justices who raised the very arguments that some of us have made for years about the ludicrous fine imposed by Judge Arthur Engoron.

Justice David Friedman noted that this law “is supposed to protect the market and the consumers — I don’t see it here.”

His colleague Justice Peter Moulton told her office “The immense penalty in this case is troubling” and added, “How do you tether the amount that was assessed by [Engoron] to the harm that was caused here where the parties left these transactions happy?”

The answer, of course, is the case was never about markets. It was about politics. The fact that the banks were “happy” is immaterial. Happiness in New York is a political, not legal calculus. The justices did not rule this week, but an opinion could be issued within a month.

In the same week, James faced a stinging defeat in another popular cause. James had targeted pro-life organizations for spreading supposed “disinformation” in not just opposing the use of mifepristone (the abortion pill used in the majority of abortions in the United States), but in advocating the use of reversal procedures if mothers change their minds before taking the second drug in the treatment regimen.

Critics charge that, while there are some studies showing successful reversal cases, the treatment remains unproven and unapproved. It remains an intense debate.

James, however, wanted to end the debate. She targeted pregnancy centers and was then sued by two pro-life ministries, Summit Life Outreach Center and the Evergreen Association.

Judge John Sinatra Jr. blocked James‘s crackdown as a denial of free speech. Notably, these centers were not profiting by sharing this information or advocating such reversal treatment.

James merely declared that people advocating such reversal treatments are engaged in “spreading dangerous misinformation by advertising…without any medical and scientific proof.”

It is a familiar rationale on the left and discussed in my latest book, “The Indispensable Right: Free Speech in an Age of Rage.” It is the same rationale that led to the banning and blacklisting of experts during the pandemic for views that have now been vindicated on the efficacy of masks and other issues. They were silenced by those who declared their viewpoints as dangerously unproven or unapproved, but who were themselves wrong.

James claimed a right to crack down on views that she deemed unproven, even by those who were seeking only to disseminate information rather than sell products.

It did not seem to matter to her that, in the 2018 in NIFLA v. Becerra, the Supreme Court rejected the effort by California Attorney General Xavier Becerra (now the secretary of Health and Human Services) to require crisis pregnancy centers to refer abortions.  The court refused to create an exception for requiring speech from licensed professionals.

After the effort failed to force doctors to disseminate pro-abortion information in California, James sought to prevent others from disseminating pro-life information in New York. The court ruled that, under the First Amendment, government officials cannot simply declare certain views as “disinformation” as a pretext to censor disfavored speech.

If there are harmful or fraudulent products or practices, the government has ample powers to target businesses and professionals involved with them. James, however, was seeking to silence those who advocate for a treatment that is unproven but not unlawful.

James’s legacy now includes an effort to disband a civil rights organization, deny free speech and secure confiscatory fines against her political opponents. Yet she is lionized by the media and politicians in an election that is billed as “saving democracy.”

In the end, James knows her audience, and it is not appellate judges. It does not matter to her if she is found to be violating the Constitution or abusing opponents. She has converted the New York legal system into a series of thrill-kills.

For some judges, however, the thrill may be gone.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

204 thoughts on “Letitia James May be Winning the Lawfare but Losing the War”

  1. What are the consequences for judges, prosecutors and witnesses who are determined to have violated the rights of defendants?

    At least in actual warfare, both sides have a relatively equal risk. In lawfare, the risk is completely one-sided. I truly doubt James would have brought the case, or Engeron would have ruled as he did, if they would have personally risked receiving the same penalty they put on Trump, if they lost on appeal.

      1. Why would OLLY need a tissue? As the good professor points out, it is James who is losing.

    2. Unfortunately, the same financial penalties for filing frivolous lawsuits don’t apply to prosecutors and judges who violate people’s rights. They are exempt. And in New York, they are lionized by Democrats. They don’t want actual warfare Olly.

      1. Well there is a federal law for violating people’s civil rights – 18USC Sec 242 Deprivation of Rights Under the Color of Law

    3. Abusing the law to go after people politically isn’t just a perversion of the law or a violation of rights, it’s a criminal thing to do and I would expect these criminal prosecutors and judges to have their fair day in court over it, nothing less.

  2. It used to be less so, but folks in NYC aren’t that much different from the LA or DC crowds these days – they lust for power, lucre, and notoriety, and either treat them like the most important person in the room – or else. 🙄 The reality is too often: ignorant, unskilled, unkind, and dimwitted. Dollars and power can make unenlightened people do and believe some very funny things.

    A lot of them will go down in history all right – just not in the ways they imagined. 🤡

  3. In an age of lawfare, New York Attorney General Letitia James has always embraced the total war option. Her very appeal has been her willingness to use any means against political opponents.

    In an age of follow the science™, many Americans have now embraced, like those who take an Oath of Office, the total war option against all enemies, foreign and domestic. Their very appeal has been their willingness to follow the science™ which states: for every action there is an equal and opposite reaction as articulated in Newton’s third law based on Corollary III, in Newton’s Principia : the mathematical principles of natural philosophy

    If only Letitia James had taken science courses instead of social work courses at CUNY.

    TL;DR: FAFO

      1. @Anonymous

        That is because she is preternaturally stupid, I don’t care how much money she spent on her ‘education receipt’. She happens to live in a place where she is very well connected and privileged and her sentiments are rewarded, if not by a majority, at least by enough (Manhattan is a city of 8 million people). This is something everyone needs to wake up to: the privileged urban class pretty much think of the rest of us as someone fit to mow their lawns. That is a fact. They by and large did not work or offer anything of value to others for their wealth advantage.

        I love polemic myself; that is not what this is about. Reject a potential administration that will drag you back to European serfdom, or not. The left leaning are not stupid; they are prejudiced and blinded by TDS.

        Is Trump or ‘White Nationalism’ in the room with you right now? Did you really hate being solvent the entire four years he was *already* POTUS so much? It’s like elucidating to five year-olds. We already had him as POTUS for a full term. Things were quite good. Get over your personal feelings of hate however you need to. That is all we are dealing with. that the ramifications are so broad is impossible to describe.

    2. They never read the fine print or peer review or action reports of the eneny or use any discipline in study . They may even have a bright mind but untrained, undisciplined, incoherence and vacuous

  4. In Her blind wrongful persecution of the Donald Trump’ Family Organization (Inc),
    New York Attorney General Letitia James’ pursuit has slit-the-wrist of the Commercial Real Estate (CRE) gambit by exposing how the Blood (Money) flows through the various veins of the CRE Syndicate. She has stabbed the ‘Heart’ which pumps the Cash-Flow by making ‘Over-Valued’ Loans on Commercial Properties and flipping those Loans and Properties into a Bubble (High Blood Pressure) until the reality of the Over-Value becomes obviously apparent and a Governmental Bailout is made to ‘Rescue the Industry’ with Helicopter Money and relinquishing the Debtors hands so that they may place a new set of Bets on CRE and start the cycle over.

    Letitia James has not gone after the Big Guns of this Casino (Jll, CBRE, Cushman & Wakefield, etc.), nor any of the Banks {Chase, BoA, Citi, …) that facilitate the gambit.

    You want to pursue this type of matter (CRE), then start with the Convicting the Owners and Bankers of the CRE Holdings (Buildings) of the Major Networks.

    ABC: 66th Street and Eighth Avenue (Manhattan)
    Associated Press [AP]: 200 Liberty Street
    CBS: Black Rock and 51W52 – 524 W. 57th Street (Midtown Manhattan), Radford Studio Center, L.A.(Studio City, CA)
    FOX: 1211 Avenue of the Americas (Sixth Avenue @ Midtown Manhattan)
    NBC: 30 Rockefeller Plaza (Midtown Manhattan )
    NPR: 1111 North Capitol Street and Massachusetts Avenue (Washington, D.C.)
    The New York Times: 620 Eighth Avenue at40th and 41st Streets (Midtown Manhattan)
    The Wall Street Journal: 1211 Avenue of the Americas Midtown Manhattan

    Letitia James could probably indite and convict the entirety of the CRE holders in Midtown Manhattan. NYC is ‘Over-Valued and Under Water’. And what about the silent ‘Immigrant Housing’ Bailout, quietly funding the debt-services of Property Owners and thus their Banks of NYC, ??? Not hard to figure out how that works.
    Why not the rest of the City Centers of United States …. S.F., Chicago. Dallas, Houston, Seattle, L.A., Atlanta, ….

    Shut Them Down Letitia !!!

    Letitia James is for Letitia James – The Wicked Witch of the West … “How About A Little Fire Scarecrow (i.e.: Trump et.al.)”

  5. Jonathan: Last week the appellate division in NY heard oral arguments on DJT’s appeal of Judge Engoron’s $489 million judgment for persistent business fraud. DJT wants the case dismissed. Justices Freedman and Moulton came at the case from different perspectives. Freedman, the most conservative of the five justices, has never found a case against DJT he would not overturn. Moulton only thinks the amount of the judgement was too high. Most NY court observers expect a 3 Justice court majority will uphold the judgement but reduce the amount of damages. That’s because a friend of mind who practiced in NY for over 30 years has never had an appeal of a judgment that was not reduced by the appellate division.

    But you keep peddling DJT’s false claim that the case should be dismissed because no one was injured–as you put it “the banks were ‘happy'”. What both you and DJT’s attorneys don’t understand is that AG James brought her case under a unique statute–Executive Order 63-12–that does not require a “victim” as in normal fraud cases. 63-12 only requires proof other borrowers were deprived of getting the same favorable lending terms because of DJT’s “persistent fraud”–that he artificially inflated the value of his assets to get those favorable lending terms. And there was ample evidence of that before Judge Engoron.

    NY’s EO 63-12 has been around since the 1050s and has been used by all NY AGs to go after business fraud because NY is the financial capitol of the country–and the world. The purpose of the statute is to ensure a level playing for all borrowers. DJT distorted that through his persistent fraud.

    Do you really think a 3 judge majority of the NY appellate division will want overturn a law that has protected all borrowers for decades–just for the benefit of DJT?

      1. Upstate, I saw the writing on the wall a while ago and put in a whole-house generator.

        If someone can’t afford the generator, vote for Trump!

    4. Reporter: “Any comment on the strikes in Yemen?”

      Biden: “I’ve spoken to both sides. They gotta settle the strike. I’m supporting the collective bargaining effort. I think they’ll settle the strike.”

    5. Jonathan, Do you really think a 3 judge majority of the NY appellate division will want overturn a law that has protected all borrowers for decades–just for the benefit of DJT?

      Jonathan, do you really think Dennis McIntyre is telling you the truth rather than peddling more lies – when the justices on that panel SPECIFICALLY asked the police state fascist prosecutor if she could explain why interfering in a business transaction between two sophisticated parties in a loan could somehow equate to protecting all borrowers? And the prosecutor defending Laverentiy Beria James could do nothing in reply but offer a mumbling impersonation of Joe Biden?

      NY appellate judges voice serious doubts about Trump’s $454M civil fraud verdict
      https://www.businessinsider.com/at-trump-friendly-hearing-judges-question-454m-ny-fraud-verdict-2024-9?op=1

      Justice John Higgitt broke into arguments by James’s deputy solicitor general, Judith Vale. “You know the history of this statute, The common thread was the AG needs greater powers, as the people’s lawyer, to protect consumers, civil rights, and the environment,” Higgitt continued. And so, again, with that sort of historical backdrop to this law, how do we draw a line, to know when the AG is operating well within her sphere of 63(12), and when she is going into an area that wasn’t intended for her jurisdiction?”

      Appeals Court Questions Trump’s ‘Troubling’ $450 Million Fine In Civil Fraud Case
      https://www.forbes.com/sites/alisondurkee/2024/09/26/appeals-court-questions-trumps-troubling-450-million-fine-in-civil-fraud-case/

      “There has to be some limitation on what the attorney general can do,” Justice Peter Moulton told Deputy Solicitor General Judith Vale, who argued the case for the attorney general’s office, after the court previously questioned bringing a case to “upset a private business transaction” between “equally sophisticated partners” in which the supposed victim had the power to conduct its own “due diligence” and “never complained.”

      Jonathan, ask your besty Dennis McIntyre if he can tell you who the hell is actually running the country right now? It definitely isn’t the unindicted Big Guy. Maybe it’s the First Babysitter Jill

      And Jonathan… I don’t think Dennis is is your friend. I think that’s just another form of his lying: cosplaying that you and he are friends on a first name basis.

      Dennis is just a Cheap Fake American Democrat Apparatchik

  6. Letitia James and her slimy ilk – particularly when campaigning for political office on promises to “get” a specific political leader of a party they oppose – are the embodiment of a modern Lavarentiy Beria who don’t need a political master like Stalin to guide their evil hands.

    And apparently the bars that they are licensed under want the public to believe that this glaring police state fascism is what a legal ethics standard looks like.

    How long before candidates for judicial positions chosen by voters campaign like these lawyers: they’ll ‘get’ a named politician as soon as a prosecutor drags them into their court?

  7. Imagine there is no — and I say it all the time — if you wanted to do a movie on some of these people that you’re going to be looking at in two minutes, if you wanted to do a movie, there’s no actor in Hollywood that could play the role.

    There’s nobody that could do it. These actors, you know, they’re a little bit shaky. They can’t play the role. They bring in a big actor, and you look, you say, “oh, he’s got no muscle content. He’s got no muscle. We need a little muscle.”

    Then they bring in another one. “But he’s got a weak face. He looks weak.”

    Now, these guys have the whole package, unfortunately for our country. I watched one of them shouting at a judge, “I kill you. I kill you when I get out. I kill you.”

    And you know, the judge is like, oh, he’s never heard this stuff. And even the guards, you know, they want to look for a new job themselves.

    “I kill you.”

    What is this, a campaign promise? And for what?

  8. She created a desert and called it peace. That is what we saw in WW 2. But it was the existential threat of global darkness and despair that provoked total war. DJT is not that person or movement. James’s appoach is as unthinking as her judgment. But even if she drops down to the level of Drax the Destroyer or Judge Dredd she has gone beyond the pale. The legal brutality she has unleashed is maximized by the outlandish and dangerous path she has chosen. And the Appelate courts are giving her a chance to back off but she is not listening. The sole fact that maybe she was wrong on DJT and maybe she has overstepped should be occurring to her now. Half the country supports this gentleman including some very astute legal minds. If she does not heed this then the appellate court should strike this case down and crush it beyond resuscitation to make sure. Sometimes that is the only way. Federal prosecutors have taken this role up in previous cases discussed here and were crushed by 9/0 reversals at SCOTUS. Not all picked up that message. The law is thoughtful, measured and deliberate and fair. We don’t need the law and justice to be feared and a terror but it has to have our respect or it all crashes down and then becomes useless to us and dangerous to the Republic.
    John Adams would be rightfully angry at his “children”.

    1. Translation: she is a tribalistic moron whose amoral tribe can only mete out dictates and never free thought and will.

  9. “New York Attorney General Letitia James has always embraced the total war option.”

    When an AG candidate runs a campaign to “get” a political rival — that AG is corrupt. When that AG then uses a “novel” interpretation of the law to bankrupt the political rival — that AG is corrupt.

    When the presiding (policy) judge rules that a property worth $600 million (at least) is worth only $18 million — that judge is corrupt. When that judge then runs a kangaroo court — that judge is corrupt.

    When the corrupt marries the corrupt, your system is corrupt.

    Your only protection is to remove yourself from the jurisdiction of the corrupt.

  10. Great column professor!
    Watching James and Democrats crash and burn has been most enjoyable. They put on full display of their disdain for the rule of law, the lengths they will go to twist the law into a pretzel to “Get Trump!”

  11. “The court ruled that, under the First Amendment, government officials cannot simply declare certain views as “disinformation” as a pretext to censor disfavored speech.”

    “The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.”
    — George Orwell, 1984

  12. It would be excellent if taxpayers could personally sue those in power who misuse and abuse funds. Eventually, it won’t matter when all the taxpayers and business owners have fled and there will be nobody left to tax or pay.

    Isn’t that their ultimate goal anyway? Collapse the system and create a totalitarian regime. The danger to our nation lies within.

    Maybe Joseph McCarthy wasn’t so crazy.

  13. This is New York. While Letitia James invents new law, their politicians ignore and subvert the current law. Lawfare is the blood relation to lawlessness.

  14. Latitia James, AG, is a Radical Left Dem who would do anything to go after Trump and anyone else that she disliked to be a Hero and advance to AG of USA, if Harris was elected. James does not care about the rule of law only how she can use it, with radical left so called Dem Judges, to achieve her goals, makes no difference if there is no case, they proved they will invent one. The whole world is laughing at the US legal system, one we use to lecture others about. If Trump is elected, he should have a Neutral, if you could find one, committee review all the lawfare and left wing AG’s letting criminals off/run wild and see that they are removed from office. The rule of law and the Constitution must be returned.

  15. “James’s office faced openly skeptical justices who raised the very arguments that some of us have made for years about the ludicrous fine imposed by Judge Arthur Engoron.”

    A nitpick, but a factual one: Engeron imposed that fine and sentence on Trump on February 16, 2024. Maybe Prof. Turley has been churning out columns and giving presentations at such a high rate that he is losing track of the passage to time. Or maybe the Demons have made so many unprincipled and unjustified lawfare attacks on Trump in such a short period of time that it seems as if it has been going on forever…

  18. Speaking of fraud: If I market myself as “pro-choice,” shouldn’t the alternatives to abortion remain among the choices? Does anyone know of an abortion provider who counsels women on adoption or, heavens! raising the child herself? Or avoiding sexual partners who are unlikely fathers? Now there is a choice.

  19. Curious as to whether her actions violates the Code of Professional Ethics? Pretty clear there is abuse prosecutorial discretion to me. How would an ethics committee rule on her actions? Any ethics experts here who would venture a guess?

    Of course, no lawyer who ever desired to practice in NY would dare raise any such issue while she is AG. But Karma has a funny way of evening things out

      1. “What code of ethics?”

        Exactly. The idea of these lawyer/politicians actually giving more than lip service (if even that) to any code of ethics with any teeth at all is so far beyond ludicrous, I’m not even certain it is accurate to label the concept an oxymoron. Possibly an entire new category of contradictory concepts needs be created.

  20. In the all out War on the Constitution by the “left”, it is clearly time that a penalty be attached to anyone found to have violated or maliciously attempted to violate anyone’s Constitutional Rights. Including any Lawyer, Prosecutor or Judge!!!!!!!! Those penalties must be severe.

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