• Show Notes

Dear Reader,

What would you think if a person ran for high public office and promised in advance that, if elected, he would use his extraordinary official powers to go after his political opponents? 

If you’re anything like the vast majority of experts and observers, from both sides of the partisan aisle (or from neither side in particular), you’d probably use terms like “openly authoritarian,” “appalling,” “dangerous,” “insane,” and “legitimately scary.” These are quotes pulled directly from prominent commentators in response to Donald Trump’s overt declaration that, if re-elected president, he will use the power of prosecution to punish his political rivals. (“Legitimately scary” is me, by the way, on CNN, and I wrote about it more fully here. I stand by all of it.) 

Now, go back to the proposition that opened this column. But change the “he” to “she.” And let’s take it from the hypothetical to the actual: What would you think if a person ran for high public office and promised in advance that, if elected, she would use her extraordinary official powers to go after her political opponents (and then did so)? 

Now you’ve got Letitia James, the New York State Attorney General.

The same criticism that rightly applies to Trump’s promises of prosecutorial retribution applies to James too. We cannot be appalled by Trump’s vow to use his office to go after his political opponents unless we also reject AG James doing the same thing – and then delivering as promised. 

Trump’s rhetoric is, without question, more dangerous. In an interview with Univision, he said of his ongoing prosecutions, “They’ve released the genie out of the box… if I happen to be president and I see somebody who’s doing well and beating me very badly, I say, ‘Go down and indict them.’ They’d be out of business. They’d be out of the election.” And that’s the less reprehensible part. Days later, Trump deployed Nazi-like rhetoric, vowing to “root out” the “vermin” who oppose him.

I’ll stipulate: Trump’s language is more extreme than James’s. He’d have far more power as president than James holds as New York state AG, and his use of authoritarian tropes is particularly ominous. But the fact that Trump’s rhetoric is more inflammatory doesn’t make James’s conduct anything close to acceptable. This is not “both-sides-ism.” This is “both sides are dead wrong; one side is worse, but the other is still bad and also must be called out (-ism?)”

At bottom, Trump and James have made the same promise: vote for me and I’ll nail the other guy, on the other side. This was the central premise of James’s successful 2018 campaign for New York AG. She tweeted that, if elected as the state’s most powerful law enforcement official, she would be “leading the resistance against Donald Trump in NYC,” that “New Yorkers need a fighter who will take on Donald Trump & stand up for our rights. I’ll be that fighter. Join my campaign,” and that “@realDonaldTrump should keep asking about me, because I’m getting ready to ask him some questions — under oath.” James raised funds from political donors with this entreaty: “I need your help in this fight against Donald Trump.” 

Worse yet, James made clear that she didn’t even know, or much care, what she’d pin on Trump once she became AG – just something, anything. At one point during her candidacy, before she had access to a morsel of evidence, James declared that Trump “engaged in a pattern and practice of money laundering” and “can be indicted for criminal offenses.” (Sure, put him in prison for money laundering, something, whatever.) And the day after she won office, James proclaimed that “We’re going to definitely sue him. We’re going to be a real pain in the ass. He’s going to know my name personally.” (Sue him for what? Who knows, we’ll find something.) It’s no different than if a Republican candidate for Delaware AG promised during his campaign to nail the Bidens (for something, anything), or if an aspiring New York state prosecutor promised to string up the Clintons (somehow, some way).

James has continued to grandstand and play politics throughout Trump’s civil fraud trial, which will (finally) wrap up in January. She has made patently inappropriate, out-of-court statements to the media throughout the trial, going so far as to publicly brand Trump and his family members as liars while they were testifying, during the pendency of the trial. If any prosecutor did this during a criminal trial, she’d be disciplined (probably fired), and the case might well be thrown out for prosecutorial misconduct. This is a civil trial, so the stakes are lower, but the same principle applies; we’re talking about the state’s top cop, here.  

I’m going to anticipate this response: But James is right – Trump has committed massive fraud! I agree with this as a factual proposition; Trump’s business has largely been built on a rickety foundation of bullshit. But I reject this as a basis to excuse James’s actions. 

First, it’s simply a non-sequitur, a non-responsive rejoinder to the problem of political targeting. The principle here is not, “It’s unacceptable for a politician to run for office by specifically targeting political opponents – unless the politician thinks it’s ok in a given instance.” If that were the case, anyone could and would claim they had ample cause to persecute their tormentors; Trump surely believes he has such justification, too. The principle is, “It’s unacceptable to run for office by promising to use your power to go after political enemies.” That’s it. 

Second, as Ruth Marcus – an unapologetically liberal editor at the Washington Post – recently demonstrated, AG James’s civil action against Trump is unprecedented overkill. Marcus acknowledges in her thoughtful piece that she despises Trump and would love to see him punished. But she quotes various New York practitioners and experts who confirm that the punishment sought by James – cancellation of all Trump’s business certificates – is unprecedented in New York history, and that other cases involving comparable (or worse) allegations of fraud have resulted in far less severe penalties. Marcus writes that the penalties sought by AG James against Trump are “unnecessary and unduly punitive, disproportionate to the offenses charged.” 

Attorney General James is an extraordinarily popular figure among Democrats in New York and beyond. There’s a reluctance in some quarters to publicly criticize her. But her conduct is unacceptable and, yes, dangerous. (Not as dangerous as Trump – but still dangerous.) As the chief law enforcement officer for the State of New York, James wields enormous, almost unimaginable power. Her political future – bolstered largely by her pursuit of Trump – is bright, and she’s likely to ascend to even higher office someday. (James briefly ran for New York governor in 2021, but she withdrew and decided to return as AG.) 

Don’t apologize or make excuses for the Attorney General. She’s highly competent, and she knows what she’s doing. Don’t accept or ignore her conduct. Reject the hypocrisy, and repudiate the explicit political weaponization of high public office, no matter who’s doing it.

Stay Informed,