After months of investigating allegations of mortgage fraud by Democratic New York Attorney General Letitia James, a political foe of President Donald Trump, U.S. Attorney Erik Siebert determined there was no criminal case. Trump’s response? Rather than accept the judgment of the federal prosecutor he appointed just this year, Trump this week signaled his plans to fire Siebert for refusing to prosecute James.
In the face of pressure from the Trump administration, Siebert submitted his resignation on Friday. “He didn’t quit, I fired him!” Trump posted to Truth Social on Saturday.
It’s unclear as of yet who will replace Siebert, but what is clear is that the president will expect that person to bring charges against whomever he wishes, regardless of the investigators’ assessment of the evidence. Of the evidence against Letitia James, who successfully sued Trump on fraud charges in 2024, Trump said on Friday, “It looks to me like she is very guilty of something, but I really don’t know.”
In declining to prosecute, Siebert followed the teaching of the United States Supreme Court in Berger v. United States (1935): “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
Former Attorney General Robert Jackson warned of the dangers of prosecutorial abuse 85 years ago. With so many technical criminal statutes on the books, prosecutors would cease discovering crimes and searching for culprits. Instead, they would be tempted to identify their political opponents and then scour the federal criminal code to pin offenses on them. Lawyer Harvey Silverglate underscored the criminal vulnerability of everyone in his landmark book, “Three Felonies a Day: How the Feds Target the Innocent.”
Trump and his administration seem to have succumbed to the prosecutorial temptation Attorney General Jackson flagged. Associate Deputy Attorney General Ed Martin volunteered to reporters: “If they can be charged, we’ll charge them. But if they can’t be charged, we will name them. And we will name them, and in a culture that respects shame, they should be people that are ashamed.”
Professional careers and personal finances can be destroyed by concocted prosecutions. Former Department of Labor Secretary Ray Donovan, after defeating fraud charges in 1987, plaintively asked, “Which office do I go to to get my reputation back?”
U.S. attorneys, like other officers of the United States, take oaths to uphold and defend the Constitution of the United States. They do not take oaths blindly to follow orders from the temporary occupant of the White House. If the two conflict, the Constitution wins hands down.
President Trump should take a lesson from Watergate and President Richard Nixon. The latter ordered the firing of special prosecutor Archibald Cox. Attorney General Elliott Richardson and Deputy Attorney General William Ruckelshaus resigned in protest in what became known as the Saturday Night Massacre. Nixon’s patent abuse of his law enforcement powers precipitated his resignation under an impeachment cloud on Aug. 9, 1974.
Mr. Trump, contemplate the late Harvard professor George Santayana: “Those who cannot remember the past are condemned to repeat it.”
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