The Constitution does not prevent prosecutors from continuing to revive the weak charges in a blatant exhibition of Trump DOJ lawfare.
It has been widely reported that, for the second time in a week, a federal grand jury in Virginia has rebuffed the Trump Justice Department’s attempt to reindict New York Attorney General Letitia James on mortgage fraud charges.
James is an elected progressive Democrat who campaigned vowing to use the powers of the state AG’s office against Trump, and she made good on that promise in an outrageously partisan and legally unsound civil fraud suit. With the help of Judge Arthur Engoron, another elected progressive Democrat, James secured a liability finding and a judgment against Trump that, with interest, approached half a billion dollars. A state appellate court recently threw out the monetary judgment but kept in place the liability finding that Trump fraudulently misrepresented his asset values to obtain favorable interest rates and terms from banks and insurers. The president is continuing to appeal the liability finding, with the state’s highest court next slated to consider it.
I once again described the Trump DOJ’s criminal fraud case against James and its weaknesses a week ago, after a grand jury in Norfolk (a division of the federal Eastern District of Virginia) filed a “no true bill,” declining to indict James. The original indictment was dismissed by Judge Cameron McGowan Currie because Lindsey Halligan, the lawyer hand-picked by Trump to indict James and former FBI Director James Comey, was not statutorily eligible to serve as interim U.S. attorney for the EDVa. Her predecessor in that post, Erik Siebert, was pushed out by the president after he refused to charge James and Comey.
To my knowledge, a no true bill has not yet formally been filed on the court record in connection with yesterday’s refusal to indict. Media reports (see, e.g., the one in the New York Times) rely on anonymous sources familiar with the proceedings. The Times says the grand jury that rejected the government’s charges this week is not the same one that did so last week.
I’ll repeat what I said after the first no true bill:
While the case against James should never have been brought in the first place, the grand jury’s no true bill is not necessarily the end of the matter. The Constitution’s double-jeopardy safeguard protects a person from being tried multiple times on the same charges, not from being charged multiple times. Consequently, Thursday’s filing of a no true bill does not bar the Trump DOJ from trying to convince another grand jury to indict. [Emphasis in original.]
Nothing has changed: There is no limit to how many times the Justice Department may ask grand juries to indict the subject of an investigation. At a certain point (one I think we’re already beyond given the record of blatant partisan motivation), Congress should explore the matter for abuse of power – given the paltry dollar amount involved even if the fraud allegations weren’t so weak, it would be interesting to know how much taxpayer money the Trump administration has expended on this prosecution. Moreover, if the Trump DOJ should finally succeed in convincing a grand jury to return an indictment, the multiple efforts to bring so weak a case could only bolster James’s claim that she is the subject of a selective, vindictive prosecution.
Still, there is no constitutional protection against government attempts to revive charges that have been thrown out by a court and rejected by a grand jury.