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Brian Lehrer: Brian Lehrer on WNYC. Late last week, as you probably heard, New York State Attorney General Letitia James was indicted by the United States Prosecutor, the US Attorney in the Eastern District of Virginia. She received two criminal charges relating to an investment property she owns in Norfolk, Virginia, a tiny yellow house, it's being described as, that prosecutors say is an impermissible investment property.

There's also an issue of whether she used her father's name on an application and tried to pass him off as her husband. We'll get into that. Here is about a minute and a half of Tish James' statement in response to her indictment that she released in a video.

New York State Attorney General Letitia James: This is nothing more than a continuation of the President's desperate weaponization of our justice system. He is forcing federal law enforcement agencies to do his bidding, all because I did my job as the New York State Attorney General. These charges are baseless, and the president's own public statements make clear that his only goal is political retribution at any cost.

The president's actions are a grave violation of our constitutional order and have drawn sharp criticism from members of both parties. His decision to fire a United States attorney who refused to bring charges against me and replace them with someone who is blindly loyal not to the law but to the president is antithetical to the bedrock principles of our country. This is the time for leaders on both sides of the aisle to speak out against this blatant perversion of our system of justice.

I stand strongly behind my office's litigation against The Trump Organization. We conducted a two-year investigation based on the facts and evidence, not politics. Judges have upheld the trial court's finding that Donald Trump, his company, and his two sons are liable for fraud.

Brian Lehrer: Attorney General Letitia James there, referring to the real estate fraud case that she brought in New York against The Trump Organization. Now, now she's being charged with real estate fraud. Is there a there there, or is this just retribution? Of course, this comes just after former FBI Director James Comey was indicted in the same Eastern District of Virginia on charges sought by the same prosecutor in the James case, and that were not sought by the previous prosecutor who Trump then removed and replaced.

Joining me now with legal analysis is Elie Honig, senior legal analyst at CNN, New York Magazine columnist, former state and federal prosecutor, and author of several books, including When You Come at the King: Inside DOJ's Pursuit of the President, From Nixon to Trump. Elie, always good to have you. Welcome back to WNYC.

Elie Honig: Thanks, Brian. Much to break down with you. Looking forward to it.

Brian Lehrer: Give us your analysis of this indictment.

Elie Honig: Well, you said, is this retribution or is there something there there? I think the answer is yes and maybe in order. Clearly, this is retribution. You can look to a couple things.

First of all, Donald Trump removed or, well, forced out the original US attorney for the Eastern District of Virginia, a guy named Erik Siebert, who was a conservative who had been put in that job as a longtime prosecutor by Donald Trump, but Erik Siebert reportedly did not see the validity of proceeding with indictments against either Letitia James or Jim Comey, and was quickly forced out and replaced by Lindsey Halligan, a longtime political loyalist of Donald Trump's who had zero prior prosecutorial experience.

On top of that, you don't even need to do the math, the Truth Social that Donald Trump posted, there's been reporting that he intended it as a private message to Pam Bondi, but he apparently inadvertently posted it on Truth Social. He says in so many- not even in so many words, he says explicitly, I want to see Letitia James and Jim Comey and Adam Schiff all indicted, and what's taking so long? There's no question that it's payback. The payback for what?

Look, Letitia James also politically targeted Donald Trump. She says in the statement you played before, just incorrectly, she says, all I did was follow facts and law. She ran on before she had access to any evidence and any facts. In 2018, her primary platform for being elected as New York State AG was vote for me and I'll nail Trump for something. I don't know what. She said different things at different times. She said she'd indict him, she'd sue him. She said money laundering. There's no question Letitia James targeted Donald Trump.

The lawsuit she brought largely failed, contrary to what she said. She said, oh, a court upheld it. Yes, but they threw out the entire monetary verdict. A liberal appeals court in New York zeroed out the monetary value of that case. Look, Letitia James did wrong by going after Donald Trump. She weaponized her office. Donald Trump is now doing the same, but I would argue it's worse because he's President of the United States.

That's the whole retribution. I think what Donald Trump is doing with respect to Letitia James and Jim Comey is an unmistakable pattern, but Letitia James does not have clean hands here either, with respect to the retributive use of prosecutorial or AG civil enforcement power.

Turning to the indictment itself, the only real answer is, we don't know yet whether there's anything there. Now, there's a chance we don't ever find out, because I think Letitia James will have a good motion to dismiss based on prosecutorial selective prosecution or vindictive prosecution. We could talk about that in a minute.

The core allegation is that when Letitia James purchased a small home in Norfolk, Virginia, in 2023, she certified that that home would be her secondary residence, when in fact, according to the indictment, it was an investment rental property. Now, the reason one might do this is to get lower interest rates on the mortgage. The allegation is that the entire value, sale price of this home, was $137,000. The amount of the mortgage was about $108,000. The amount of savings Letitia James received by making this false statement, amounted to $18,000.

Now, Brian, I've said before, that is a really low number for a federal mortgage fraud case. I don't think I would have ever taken in a federal mortgage fraud case with that low of a loss amount. Did she commit fraud? That remains to be seen.

Brian Lehrer: On what you said about Tish James going after Trump politically, I don't have any of the quotes in front of me of whatever she may have said in her campaign for Attorney General. I imagine she would argue that, no, she didn't say she was going to target Donald Trump just to target Donald Trump; that she was arguing more like there are things Trump has not been held accountable for, that I'm going to hold him accountable for that maybe previous attorneys general took a dive because Trump was powerful, or it would have been an ugly public relations fight, that kind of thing.

Where's the line for you between actually using her office to politically target Donald Trump because that would be popular with Democratic voters in the blue state of New York, versus yes, there's stuff Trump did that he just has never been held accountable for, and she's going to look into those things for real?

Elie Honig: I'll give you some quotes. Here's something. There's dozens of these. She tweeted that if she was elected, she would be "leading the resistance against Donald Trump in New York City." She solicited campaign donations by vowing to take down the president. She declared that Trump "engaged in a pattern and practice of money laundering," and "can be indicted for criminal offenses." What is that?

The day after she wins office, she still has no access to any evidence. She said, "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." That's just a small sampling. The clear message was vote for me and I'll get this guy. I'm not okay with that any more than I would be okay with somebody running for Attorney General of Delaware saying, vote for me and I will nail Joe Biden and Hunter Biden, or running for AG of New York saying, I will find a way to nail AOC. She's not been held accountable.

I think it is a really dangerous path when you have someone running for a position that holds enormous prosecutorial power by singling out an individual. By the way, it wasn't like this was some side note. This was the centerpiece of her entire campaign, by singling out a person who is politically unpopular in that district and vowing to get them somehow criminal, civil, I don't know, we're going to sue his ass. He's going to know my name. Indict him for money laundering. You can apply that to any person in any hard blue or hard red district and see the problem with it, I think.

Brian Lehrer: I think we have pushback on exactly that from Patrick in the Bronx. You're on WNYC with Elie Honig, legal analyst for CNN and New York Magazine. Hi, Patrick.

Patrick: Hi. Thanks for taking my call. Mr. Honig, I think you missed the point. Cyrus Vance, the District Attorney of New York, some would argue, refused to--

Brian Lehrer: That's the previous Manhattan DA, just to be precise. Go ahead.

Patrick: Had refused to-- Well, he said investigate it, but refused to indict The Trump Corporation for the same conduct for which, became Okoran during the subsequent elections for Bragg and Letitia for the Attorney General.

Brian Lehrer: Let me get a response because that's a very specific point. We talked about this. I even interviewed Cy Vance about this when he was the Manhattan DA. There was a lot of press at the time that he took a dive on two cases that he should have charged in. One had to do with the Trumps and real estate fraud. The other had to do with Harvey Weinstein, you may remember-

Elie Honig: Sure.

Brian Lehrer: -despite a fair amount of evidence in the way he treated women. That was certainly out there at the time, before Letitia James started running on this.

Elie Honig: Right. I wrote about both of those in my book, by the way. I agree with you that Cy Vance took a dive on both of those cases; on the fraud that's not this fraud that Trump ended up getting charged for, but the fraud relating to his children and an apartment building, that's one. The Harvey Weinstein case, for sure, I think he took a dive. I don't see how that justifies someone running based on a premise of I promise you I will bring this guy down somehow. He's an illegitimate president. Her political motives were explicit.

Look, this is Part 1 of the story. I don't think you can credibly say that Letitia James was absolutely right and what's happening to her now is absolutely wrong. I say Letitia James was absolutely wrong, and what's happening to her now is also absolutely wrong and worse because it's the President of the United States, because he's using and weaponizing the criminal prosecutorial power of the Justice Department. These efforts to whitewash what Letitia James did just do not resonate and are not consistent with her actual statements.

Brian Lehrer: Right, but you don't think this indictment of her should hold up in court either.

Elie Honig: Yes.

Brian Lehrer: I want to read you something that a listener wrote. "Letitia James began mortgage fraud at 24 years old. 1983 mortgage application, she lists her father as her husband to get a better loan rate." Is that part of this indictment, because I do see that going around the web?

Elie Honig: It's not. It's not. Let's keep in mind, there have been all sorts of allegations out there about Letitia James and various incarnations of mortgage fraud. The prosecutor's office went through-- A bunch of these came over. There's an important name to keep in mind here; Bill Pulte. This is the guy who is now leading the Federal Housing Finance Agency under Donald Trump. Apparently, he's just thumbing through people's mortgage files and sending referrals on disfavored people like Letitia James, and Adam Schiff, and Lisa Cook from the Fed Board of Governors, over to DOJ.

One of the allegations is this thing with her listing her father as her husband. That is not part of this indictment. I don't have any reason to think there's any substance to that. There was also a separate allegation with respect to this same property in Virginia, that she, at one point, had said it would be her primary home, but in fact, it was her secondary home. That's also not the basis for this indictment.

The basis for this indictment is that Letitia James certified and got a loan under this property in Virginia being her secondary home, but in fact, the allegation is it was not. In fact, it turns out she had a niece living there, received apparently some minimal, minimal rental income. May have claimed it for tax purposes, but basically, she said it would be her secondary home, the allegation says, but she treated it as a rental investment property. That matters because you get a slightly better rate on your mortgage interest, which amounts to about $18,000 here for a secondary home.

Whether Letitia James did that or not, I don't know. Nobody knows. Don't believe anybody right now who tells you she's absolutely guilty or not guilty because we just don't know enough about the evidence. I will say prosecutors are going to have to prove her guilt and her intent to commit fraud beyond a reasonable doubt, and we know that career prosecutors in the Eastern District of Virginia objected to bringing this charge. Those are indicators to me that this is a charge that won't stick.

Brian Lehrer: What can we learn about the grand jury process in this case? Because when Trump was indicted on those various things and he was proclaiming his innocence and that was political, he said, a lot of the pushback was, well, this wasn't just some Democratic prosecutor who brought it. They got a grand jury to look at the evidence and decided there was enough of a reasonable possibility that the person, Donald Trump, committed these crimes. This is 12, or 23, or however many sit in a grand jury in a particular place, regular people who thought there was a there there. They had a grand jury in this case, too. How should people process that?

Elie Honig: I think that's a worthwhile thing to note when we're trying to assess whether there's any evidence, but I think we also have to keep in mind that the bar is very low in the grand jury. A few things. First of all, the burden of proof the prosecutor has in the grand jury is only probable cause, versus, of course, at trial, you have to prove a case beyond a reasonable doubt, so a very low- not nothing but a low evidentiary bar.

Second of all, as you alluded to, Brian, there's 23 members of a grand jury. You need a majority, only 12, to approve an indictment. Of course, at a trial jury, you need unanimity. Finally, really importantly, it's one-sided. There's only a prosecutor in the grand jury. There's no defense lawyer fighting back. There's no judge saying certain evidence might be inadmissible. Of course, both of those things would exist at trial.

Yes, it shows prosecutors can't just absolutely fabricate something and get it past the grand jury, but the bar is quite low. Important to keep in mind, we have seen reporting that the Comey grand jury came out-- Well, they rejected one of the three charges, and they came out 14 to 9 on the two charges they did approve. That does not bode well. If you can only get 14 to 9 in a grand jury, good luck getting 12-0 at a trial jury.

Letitia James, we don't know the count of the vote exactly, but yes, we do know that a grand jury approved these charges. Shows there's not nothing there, but it doesn't necessarily mean she's guilty.

Brian Lehrer: Last thing, and this may be the most important question when we get past the particulars of any of these cases, is this another step, maybe a major step, toward turning the United States into an authoritarian country? On Truth Social, Trump posted a message on September 20th aimed directly at US Attorney General Pam Bondi. I'm just going to read part of this. It's getting a lot of attention.

It says, "Pam, I have reviewed over 30 statements and posts saying that, essentially, same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam "Shifty" Schiff, Leticia? They're all guilty as hell." Then goes on later to say, "They impeached me twice and indicted me five times over nothing. Justice must be served now. President DJT."

Elie Honig: Yes, that's the exact social media post that I was alluding to earlier. Yes, this is a very dangerous moment for our country. This is a line that Donald Trump has crossed that no prior president has crossed. We talked about this. I talked about this on your show about how I talk about this in the book. I go back in my book to Watergate and follow every case, insider accounts up through Jack Smith.

This is the first time we've seen a president overtly break down that wall of independence, that more than traditionally, just historically, has separated the Justice Department from the White House. No president before has issued direct orders to the White House to go and get my political adversaries, and also had it be followed through on, and also make firings and personnel replacements to make sure that it happens.

It's important to keep in mind, Brian, there's nothing in the Constitution, there's no law passed by Congress that says DOJ shall and must be independent. In fact, there's an argument that some make that I disagree with, that, well, they're part of the executive branch. DOJ is there to be used at the president's disposal.

The practice of DOJ being independent is the result of decades and more than a century of custom, tradition, and best government as exercised by both political parties, by Republicans and Democrats, because both parties have long recognized that if you politicize DOJ, it leads down a very dark path. It just happened to work out that I was half my time at DOJ under Republicans, half my time under Democrats. The beauty of it was it made no difference. I hardly even remember there being a transition. It made zero difference to what I did.

DOJ is the one entity we have in the federal government that can deprive civilians of their liberty. When you start weaponizing that and using that to settle political scores, that's a very dangerous moment in our history.

Brian Lehrer: There may be a lot on this jury, and maybe the Comey jury to not just look at the facts of the case, but tell America what kind of justice system we want to have. Is that fair?

Elie Honig: Well, it's really interesting because the question about retributive or vindictive prosecution will actually be resolved by the judge before it gets to a jury. I think there's a good chance there's two different judges have these two different cases. I've never seen a stronger case for selective or vindictive prosecution because what you have to prove is I was picked out for political purposes. Now, I ordinarily, even if you suspect that, it's hard to prove it because it's not said out loud, it's not put in writing, but you just read what will be Exhibit A, Brian.

First, a judge will decide whether this has been political, or vindictive, or selective. If the cases survive that- I'm not sure they will- then it'll go to a jury. Now, you can't argue that explicitly to a jury if you're the defense, but [crosstalk]--

Brian Lehrer: If the judges throw it out- and we just have 10 seconds- does it wind up at the Supreme Court, eventually?

Elie Honig: It'll certainly go to the Court of Appeals. I don't know that the US Supreme Court will take this up. It will be appealed, but look, I think it's about as strong a case for selective prosecution as I've ever seen.

Brian Lehrer: Perhaps it will be up to this Supreme Court to determine what kind of justice system we have.

Elie Honig: Maybe.

Brian Lehrer: Elie Honig, Senior legal analyst at CNN, New York Magazine columnist, former state and federal prosecutor, and author of several books, including When You Come at the King: Inside DOJ's Pursuit of the President, From Nixon to Trump. Thanks for coming on, Elie. Appreciate it.

Elie Honig: Thank you, Brian.

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