“First Thing We Do…”

I finally found an account of the “case” Trump wants to make against Letitia James

I have to first say, Bill Pulte and Donald Trump are not lawyers:

The allegation against James is twofold. First, the criminal referral letter maintains that James falsely stated that she intended to reside primarily in Norfolk. Second, Pulte argues, if she had made her home there, that wouldn’t have been legal either, because her role at the time as N.Y. attorney general required her to reside in the state she represents.

Neither part of the accusation bears scrutiny. James did not actually reside in Norfolk, nor is it clear that she ever pretended to. The referral declines to mention that the third party granted the power of attorney was James’s niece. James, according to her legal representation, assisted with the down-payment and co-signed the mortgage documents to help secure the loan, as many a parent has done for a child buying their first home.

James did incorrectly indicate on the power of attorney form that she would occupy the property as her principal residence. That may have been an error, or it may have been deliberate. But if it was deliberate, there’s no explaining why, in emails with the mortgage loan broker, she made her actual intentions capital-letters clear: “This property will NOT be my primary residence. It will be Shamice’s primary residence.” A loan application filed after the inaccurate power of attorney reflects this reality; the broker, in an email of his own, confirms it. How do prosecutors expect to prove that James made her false statement knowingly, much less that she intended to deceive a bank when, in these communications, she so evidently told the truth?

The only other supporting document Pulte refers to is a Virginia deed of trust, a standardized Fannie Mae/Freddie Mac form describing a borrower’s obligations under a loan. Pulte suggests that by signing the form, James reaffirmed that the Norfolk home would be her primary residence; the relevant section—labeled “Occupancy”—-does require that the borrower “occupy, establish and use the Property as Borrower’s principal residence within 60 days.” But the form is co-signed by James’s niece, presumably satisfying that requirement.

This highlights another problem for a potential prosecution: James may not have been applying for a loan for her primary residence, but she was applying for a loan for a primary residence, for her niece. Even if she had intentionally misled a mortgage broker, the distinction between co-borrowing for a primary residence for herself and co-borrowing for a primary residence for the other borrower—as opposed to, say, the distinction between borrowing for a primary residence and for a secondary one—would almost certainly not have led to a meaningful difference in rate.

The false statement in the power of attorney, in other words, would have been unlikely to influence the bank’s decision to provide James the loan at the agreed-upon rate, and prosecutors would struggle to show that was her intent.

Lawyers would no be stupid enough to consider these to be real examples of fraud. (Yes, Ed Martin is the exception that proves the rule, but Martin got shut down for his intemperate efforts.) The only legal concept you need to know about fraud to follow this, is that fraud requires intent. Intent in fraud involves two elements: that the defendant intentionally (and knowingly) made misrepresentations that they intended someone to rely on to their detriment. So a lender relied on representations that a house would be a primary residence for the borrower, and charged a lower rate of interest. But the borrower lied to get that lower rate. That would be fraud.

Fraud is different from misrepresentation. That’s done almost negligently. You should have been careful about what you said, but you weren’t, and someone relied on it to their detriment. To prove misrepresentation (to keep it simple), you need only prove carelessness. To prove fraud, you have to prove intent.

James did incorrectly indicate on the power of attorney form that she would occupy the property as her principal residence. That may have been an error, or it may have been deliberate. But if it was deliberate, there’s no explaining why, in emails with the mortgage loan broker, she made her actual intentions capital-letters clear: “This property will NOT be my primary residence. It will be Shamice’s primary residence.”

It’s pretty hard to overlook that evidence and establish intent to defraud. The signed form could be carelessness; but the damage, if any, is de minimus.

This is not (necessarily) all the evidence against James, and the conjecture on the Comey indictment is instructive here. All the talking heads thought the charges (which are poorly presented in the indictment) were he said v he said between Comey and McCabe. Until it turned out McCabe never testified before the grand jury. And the information on the investigation into James is based on a criminal referral letter. (There are two other allegations, based on two other properties, but the law of diminishing returns applies to both of them.) So this conjecture is based on what the government has revealed, in an effort to pressure James to resign. This us, in other words, their best shot. And it’s a bigger joke than the allegations against Lisa Cooke.

I know we’re supposed to be very afraid of Trump, and very outraged about what he’s doing. But he doesn’t really have the power to do as he wills, no matter what he says or what his terminally online critics say about what he says.The Sinister Six have given him unparalleled power over government employees and government spending, but they haven’t given him the power to ignore the legal system and directly jail whom he pleases. In fact, there’s a theory abroad in the land that the Sinister Six fear Trump will ignore an adverse ruling and defy the Supremes, and what then? OTOH, if they throw away the rule of law and let Trump be an unbridled monarch, what then? I don’t think they’re really between that Scylla and Charybdis, and I don’t see them throwing out criminal statutes and procedures just to give Trump a win.

This, in other words, is Trump running up against a wall he can’t get over, go around, or through. The only available remedy is the constitutional one that cries out to be used (far more loudly than for Nixon), but that will require replacing far more Senate incumbents than is historically likely. So all we can do is rely on the courts until we can change the Congress and throttle his ambitions and corruption that way.

And start thinking seriously how we amend our constitution. I’m beginning to think a parliamentary system might be in order. Even the old smoke filled rooms worked better at providing candidates who weren’t such gibbering idiots.