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The Dictatorship

Lindsey Halligan should have re-read the Constitution before going after Letitia James

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Lindsey Halligan should have re-read the Constitution before going after Letitia James

In the same jurisdiction in which the Trump Justice Department indicted former FBI Director James Comey more than a week ago, the same prosecutor who brought that case has now gone after another Trump enemy: New York Attorney General Letitia “Tish” James. (Disclosure: I worked as a volunteer member of James’ transition team after her election in 2018.)

The reason for the indictment? James is accused of having falsified a mortgage application on a property purchased in Virginia. The extent of the harm she is alleged to have caused? About $18,000.

Whether the prosecution will ultimately be able to prove the case against James remains to be seen. What seems more likely is that James will be able to get the case dismissed, because it could be classified as an unconstitutional selective prosecution.

Donald Trump has railed against and threatened to prosecute James once he retook power, after she brought a civil action against him for … mortgage fraud.

James is charged with having engaged in mortgage fraud and making false statements to a financial institution. The case appears to rest on flimsy and conflicting evidence at best, has been brought on grounds that are rarely prosecuted and was filed over the objection of career lawyers within the Justice Department who did not think there was probable cause to bring the case.

What the government will have to prove in establishing the charges before a jury is that James knowingly lied when she claimed that she intended to use the home as a secondary residence at the time of the application. That is something the prosecution will have to prove beyond a reasonable doubt. Other evidence that James appears to be able to present will likely contradict that case. It will be up to the jury to decide if the prosecution can meet that burden. But there is a good chance a jury will never hear this case.

Donald Trump has railed against and threatened to prosecute James once he retook power, after she brought a civil action against him for … mortgage fraud. James won that case in New York and secured a nearly $500 million judgment against Trump, several members of his family and some of his businesses. That damages award has been overturned on appeal, and what damages should be paid is an issue that is pending final resolution. The underlying verdict that Trump committed fraud still standshowever.

While James has professed her innocence, she has another potential response to this indictment: that the prosecution itself violates the constitutional prohibition against what is known as selective prosecution.

The concept of selective prosecution is one recognized by the U.S. Supreme Court. It occurs when a prosecution is brought for an improper purpose and an improper discriminatory effect. Courts generally recognize that prosecutors have wide discretion to prosecute cases as they see fit — but that discretion is not without limits. Still, establishing a claim of selective enforcement requires the defendant to meet a fairly high bar. From the publicly available information about her case and others, James would appear to be able to make out a good case that this action against her qualifies as a selective — and therefore unconstitutional — prosecution.

According to the Supreme Court, a selective prosecution claim is available to someone who says that the prosecution “had a discriminatory effect” and “was motivated by a discriminatory purpose.” For example, that the prosecution was brought based on the defendant’s race or gender, or as a form of punishment for asserting a protected constitutional right.

It is hard to escape the conclusion that James is being prosecuted simply because, in carrying out her functions as a state attorney general, she enforced the law against the person who is currently president.

A prosecution of a state official for doing their job in enforcing federal law would fly in the face of critical free speech and federalism principles — in violation of the 1st and 10th Amendments to the U.S. Constitution.

It is hard to escape the conclusion that James is being prosecuted simply because she enforced the law against the person who is currently president.

Again, a claim of selective prosecution is hard to establish. Still, the evidence for James to try to make out this claim is in plain sight, but even that evidence may be but the tip of the iceberg. In September, the president took to Truth Social to implore Attorney General Pam Bondi to commence prosecutions against several of his enemies. (It seems quite possible that this message was not meant to be a public communication.)

Are there more communications like that that were not made public? What was the scope of the investigation into mortgage fraud by James and others? Why were these investigations even commenced? Was it simply a case of presenting a list of individuals to the Justice Department with the directive to find a crime, any crime? What steps has the administration taken to investigate the allegations that others in the administration engaged in similar conduct?

If James can present some initial evidence that the case against her constitutes an unconstitutional selective prosecution, she will then be able to explore some of these other factual questions.

From publicly reported information, the criminal case against James appears to rely on a somewhat flimsy evidentiary basis. At the same time, what we do know already from publicly available information, with some of it containing the public statements and missives of the president himself, the evidence that this was a selective prosecution may be overwhelming.

Ray Brescia

Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.”

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The Dictatorship

GOP’s Mills faces expulsion effort launched by one of his Republican colleagues

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GOP’s Mills faces expulsion effort launched by one of his Republican colleagues

Republican Rep. Cory Mills of Florida was already dealing with multiple, overlapping scandals when a judge issued a restraining order against the congressman last fall after one of his ex-girlfriends accused him of threatening and harassing her. Soon after, Mills found that even some of his allies were keeping him at arm’s length.

In December, Rep. Byron Donalds, a fellow Florida Republican, conceded“The allegations against Cory, to me, are very troubling. I’m concerned about him. I hope he gets his stuff worked out and cleaned up, but it has to go through ethics [the Ethics Committee]. And he has to, you know, basically do that hard work to clear his name, if it can be cleared.”

Donalds, a leading gubernatorial candidate in Florida, had previously suggested he saw Mills as a possible running mate, making the comments that much more potent.

It didn’t do Mills any favors when The Washington Post published a new report a few days ago highlighting body camera footage that showed police officers in Washington, D.C., who were prepared to arrest the GOP congressman after a woman accused him of assault last year, before a lieutenant ultimately ordered them not to when she changed her account. (Mills refused to comment, except to say that the woman’s initial claim was “patently false.”)

Two days after the Post’s report reached the public, one of Mills’ Republican colleagues announced an effort to kick the congressman out of office. NBC News reported:

Rep. Nancy Mace, R-S.C., introduced a resolution Monday to expel Rep. Cory Mills, R-Fla., from Congress over accusations that include sexual misconduct.

Mills is being investigated by the House Ethics Committee in connection with allegations of ‘sexual misconduct and/or dating violence’ and campaign finance violations. He has denied any wrongdoing.

“The swamp has protected Cory Mills for far too long and we are done letting it slide,” Mace said in a statement. “We tried to censure him and strip him from his committee assignments. Both parties blocked it, but we are not backing down.”

By way of social media, the Floridian expressed confidence that he’d prevail if Mace’s resolution reached the floor, encouraging the South Carolinian to “call the vote forward.”

Time will tell whether the expulsion vote actually happens, but in the meantime, after NOTUS reported that Mills intends to respond with an expulsion resolution of his own targeting Mace, the congresswoman wrote online“Cory Mills lied about his military service, has been accused of beating women, has a restraining order against him, and has allegedly been stuffing his own pockets with federal contracts while sitting in Congress. As a survivor, I will always stand up and right the wrongs of others. He is only coming after me because he knows he’s next.”

It’s not often that Americans see members of Congress launch dueling efforts to kick each other out of office, but this is proving to be an unusually awful term.

Indeed, amid growing GOP anxieties about the upcoming midterm elections, there’s fresh evidence that the House Republican conference is both divided and unraveling.

Steve Benen is a producer for “The Rachel Maddow Show,” the editor of MaddowBlog and an MS NOW political contributor. He’s also the bestselling author of “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past.”

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The Dictatorship

11 years later, the Senate Republicans’ open letter to Iran is relevant anew

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11 years later, the Senate Republicans’ open letter to Iran is relevant anew

As part of a series of online rants, Donald Trump complained on Monday afternoon that congressional Democrats “are doing everything possible to hurt the very strong position we are in with respect to Iran.” The president didn’t refer to any specifics, which wasn’t too surprising, since Democratic lawmakers haven’t had any success in curtailing the White House’s policy.

But as the next round of talks with Iranian officials prepares to get underwayit’s worth appreciating the fact that if Democrats were prepared to deliberately try to undermine the administration’s negotiating position, I suppose they could write a letter to Iranian leaders, encouraging them not to trust the United States — which is what Republicans did 11 years ago.

Remember this report from The New York Times in March 2015?

The fractious debate over a possible nuclear deal with Iran escalated on Monday as 47 Republican senators warned Iran about making an agreement with President Obama, and the White House accused them of undercutting foreign policy.

In a rare direct congressional intervention into diplomatic negotiations, the Republicans signed an open letter addressed to ‘leaders of the Islamic Republic of Iran’ declaring that any agreement without legislative approval could be reversed by the next president ‘with the stroke of a pen.’ The letter appeared aimed at unraveling a framework agreement even as negotiators grew close to reaching it.

At the time, the international talks among the permanent members of the United Nations Security Council, Germany and Iran had reached a delicate stage, and an agreement over the future of Tehran’s nuclear policy was within sight.

But as the seven-nation talks reached a critical stage, Republican Sen. Tom Cotton of Arkansas, just two months into his term in the upper chamber, recruited 46 of his Senate GOP colleagues to write an open letter to Iranhoping to undermine the historic diplomatic opportunity.

As part of an apparent sabotage attempt, the 47 Senate Republicans effectively told Iranian officials not to trust the United States as part of the talks. (Then-Sen. Marco Rubio, a decade before he became secretary of state, was among the signatories. The Florida Republican then turned his role in the fiasco into a fundraising appeal.)

The U.S. Senate Historian’s Office explained soon after that it could not find a comparable example in the institution’s history in which “one political party openly tried to deal with a foreign power against a presidential policy, as Republicans have attempted in their open letter to Iran.”

The reactions from abroad were even more dramatic: U.S. allies said that the Republicans’ letter actually helped Iran’s negotiating positionfurther undermining the senators’ own country.

The Cotton-led effort was quickly denounced by Democratsveteran diplomateditorial boardspunditsof every stripe and even some Republicansbut to date, none of the signatories has expressed regret for their role in the unsuccessful sabotage campaign.

As for how Trump and his party might respond if 47 Senate Democrats were to write an open letter to Iran right now, as part of an attempt to undermine talks in Islamabad, one can only imagine the severity of the partisan hysterics.

Steve Benen is a producer for “The Rachel Maddow Show,” the editor of MaddowBlog and an MS NOW political contributor. He’s also the bestselling author of “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past.”

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The Dictatorship

Trump Fed chair pick Warsh vows independence at Senate hearing

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Trump Fed chair pick Warsh vows independence at Senate hearing

Kevin Warsh, President Donald”https://www.ms.now/news/trump-names-kevin-warsh-as-next-federal-reserve-chair?_thumbnail_id=1163350″>Trump’s pick to chair the Federal Reserve, told lawmakers Tuesday that he would not capitulate to Trump’s demands, saying he does not see outward political pressure as a threat to the central bank’s independence.

During his Senate confirmation hearing, Trump’s millionaire nominee faced scathing questions from Banking Committee Democrats over perceived gaps in his financial disclosures and his ability to maintain the central bank’s integrity. When pressed to divulge his stance on political questions outside of the bank’s jurisdiction, he refused, saying instead that “the Fed must stay in its lane.”

Warsh used his opening remarks to convey a simple but significant argument to the senators who will decide whether he is fit to steward America’s monetary policy: Political pressure is not a threat to the central bank — opining on fiscal and social policies outside of its purview is.

The insulation of the Fed from politics was widely expected to be the defining issue of Warsh’s confirmation hearing, given that the president who appointed him has made no secret of his belief that the White House should have greater control over the nation’s monetary policies.

Testifying under oath Tuesday, Warsh said Trump never asked him to “predetermine, commit, fix or decide on any interest rate decision in any of our discussions.”

“Nor would I ever agree to do so if he had,” Warsh said.

Warsh’s declarations might wind up being beside the point when it comes to whether he’s confirmed to replace the man currently in the job.

After the Justice Department subpoenaed Federal Reserve Chair Jerome Powell and accused him of knowingly misleading Congress about the ongoing $2.5 billion building renovation project at the Fed’s Washington headquarters, retiring Republican Sen. Thom Tillis of North Carolina vowed to block the confirmation of any Fed chair nominee until the DOJ dropped its investigation.

The subpoena came amid Trump’s public pressure campaign against Powell over his refusal to slash interest rates. His attacks included multiple threats to fire Powell and the Justice Department’s effort to pursue a criminal case against him.

Tillis decried the Justice Department’s Powell probe during his allotted time Tuesday. He focused on the potential the investigation has to delay Powell’s exit from his post as Federal Reserve chairman in May rather than the ethics of the probe itself, which he has publicly questioned in the past.

Powell has said he has no intention of leaving the central bank’s board until the DOJ drops the investigation, even though his term ends May 15. He can stay past May because he also serves as a member of the Fed’s board of governors, his term for which does not end until January 2028.

Praising Warsh for his background as an economist, Tillis made clear his “no” vote is not personal to Warsh. Tillis told MS NOW ahead of the hearing that he has spoken to the White House about his intention to vote against Warsh.

Warsh, a favorite among Republican circles and the son-in-law of billionaire Trump donor Ronald Laudertried to persuade lawmakers that he is not a reflection of the president who appointed him.

“I do not believe that independence of monetary policy is threatened when elected officials state their views on rates,” the former Morgan Stanley investment banker said in his opening remarks. “Fed independence is up to the Fed.”

Sen. Elizabeth Warren of Massachusetts, the committee’s highest-ranking Democrat, pressed Warsh on what she said were “secrets” in the financial disclosures he provided to the Office of Government Ethics ahead of the hearing. Warsh disclosed assets worth more than $100 million — including stakes in the prediction market platform Polymarket and Elon Musk’s SpaceX — but did not name the underlying holdings of his largest investments.

“If you can’t answer these questions, you don’t have the courage and you don’t have the independence,” Warren said after Warsh refused to say whether his undisclosed individual investments are tied to the Trump family, declined to answer a question about whether Trump lost the 2020 election and repeatedly demurred when she challenged him to name a policy point on which he disagreed with Trump.

Warsh said he would divest his undisclosed assets if confirmed, which would put him in compliance with the requirements of the ethics office. Doubling down on his bid to convince the panel of lawmakers that he will not yield to the president’s repeated calls for lower interest rates, Warsh said he is not Trump’s “sock puppet,” the term Warren used.

“Someone here is lying then,” Sen. Ruben Gallego, D-Ariz., said of Warsh’s claim that Trump never asked him to cut interest rates. “It’s either you or President Trump.” Gallego pointed to reporting from The Wall Street Journal in December that Trump pressed his nominee to “support interest rate cuts” when nominating him to lead the Fed.

In a live phone interview with CNBC the morning of the hearing, Trump said he would be disappointed if Warsh does not immediately slash rates upon his confirmation.

Sen. Kevin Cramer, R-N.D., previously joined Tillis in expressing concern over the motivations behind the probe. Warren called on her Republican colleagues to block Warsh’s nomination until the investigation comes to an end.

A federal judge quashed the investigation, which had become central to Trump’s  smear campaign against Powellin March. In April, the same judge denied the Trump administration’s bid to revive the subpoenas he dismissed, writing that “the Government served these subpoenas on the [Federal Reserve] Board to pressure its Chair into voting for lower interest rates or resigning.” Despite the blow, U.S. Attorney Jeanine Pirro is still fighting to keep the investigation alive.

The banking committee, which oversees Fed nominations, has a narrow 13-11 Republican majority.

Warsh stumbled while answering questions from Sen. Raphael Warnock, D-Ga., about how he would grade the economy for working Americans. Rather than offer a serious answer about the Fed’s role in shaping the economic outlook for consumers, Warsh made a joke about grade inflation at elite universities.

Several staffers and some committee members could be seen chuckling behind him.

“Well the Americans that I talk to, particularly in the state of Georgia, who haven’t had the benefit of attending some of these elite institutions, are trying to make their lives work,” Warnock replied. “They’re sitting around their kitchen tables trying to figure out how to put their kids through school, and regardless of how the markets are doing, consumer confidence is at a record low. So that’s their grade on the economy.”

Warsh previously served as a Federal Reserve governor in the early 2000s, after being nominated by then-President George W. Bush.

Sydney Carruth is a breaking news reporter covering national politics and policy for MS NOW. You can send her tips from a non-work device on Signal at SydneyCarruth.46 or follow her work on X and Bluesky.

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