The Department of Justice’s refusal to hand over evidence to New York’s attorney general, Letitia James, sets up a high-stakes clash over whether she can dismiss the criminal mortgage fraud case against her as “vindictive” and “selective” before it reaches trial.

Ms. James mounting of such a claim is a development drenched in irony because she ran for office in 2018 vowing to “shine a bright light” into Mr. Trump’s business dealings. She also vowed that she would “never be afraid to challenge this illegitimate president.” Once in office, she launched a civil fraud case against Mr. Trump, his two adult sons, and his business that resulted in a $500 million judgment. That penalty was overturned on appeal as “excessive.” 

Throughout the case, Mr. Trump’s legal team argued that their client and his business was being targeted vindictively in a selective prosecution — though they never formally made that case in court.

Ms. James is charged in the Eastern District of Virginia with bank fraud and making false statements to a financial institution. The allegations stem from  a $109,600 loan the prosecutor secured in August 2020 to purchase a modest Norfolk home which is used by Ms. James’ niece. Prosecutors contend that the favorable terms of the loan mandated that she use the house as a secondary residence and not as an investment. 

The interim United States attorney for the Eastern District of Virginia, argues that Ms. James obtained a lower interest rate and a higher seller credit but rented out the house anyway. Ms. James is accused of pocketing $18,933 in “ill-gotten gains” as a result of  “intentional, criminal acts and tremendous breaches of the public’s trust.” Ms. James vows to “fight these baseless charges aggressively.”

At the center of that strategy is convincing the presiding trial judge, Jamar Walker  — an appointee of President Biden — that the government’s case against Ms. James ought to be tossed because it is “selective” and “vindictive.” That would be a violation of the Constitution’s command that “Nor shall any person … be deprived of life, liberty, or property, without due process of law.”The Supreme Court has ruled that due process does not “leave room for the play and action of purely personal and arbitrary power.”

Last month Judge Walker ordered the government  “to provide Defendant with vindictive/selective prosecution-related discovery” prior to her officially filing her motion for dismissal. The judge’s order was pursuant to what’s known as the “Brady Rule,” which compels the government, in a criminal trial, to disclose material evidence that is favorable to the accused. The government is obligated to turn over such records even if the defendant does not ask for it. Violating Brady is grounds for the dismissal of charges.

Now, the interim U.S. attorney for the Eastern District of Virginia,  Lindsay Halligan —  a former personal attorney for Mr. Trump whose most recent remit was cleaning up the Smithsonian —  is challenging  Judge Walker’s order to hand over records. The DOJ argues that the “instruction is premature as the Government bears no such obligation until a defendant ‘overcomes a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct. This standard is a rigorous one.’”

The Supreme Court has ruled that “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” The standard to prove that a prosecution is vindictive is arduous for a defendant because of the “presumption of regularity,” or the assumption that government action is lawful.

The DOJ argues that Ms. James, before gaining access to government files, “must overcome a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct.” The dispute could turn on whether the government’s obligations under Brady extend only to the “case in chief” — meaning the substance of the charges — or also motions to dismiss like the one Ms. James is readying.

Ms. Halligan’s memorandum insists that her team “is not required to produce vindictive/selection prosecution related discovery until Defendant overcomes the presumption of the prosecution’s lawfulness.” If Judge Walker agrees, Ms. James could be forced to rely on Mr. Trump’s public pronouncements. The prosecutor announced after her arraignment that “justice will rain down like water and righteousness like a mighty stream.”

Mr. Trump has called Ms. James a “fake and corrupt attorney general” but never challenged her case against him as vindictive. The acting United States attorney for the Northern District of New York, John Sarcone, is now investigating whether the fraud lawsuit violated Mr. Trump’s civil rights. Ms. James has moved to dismiss that case on the grounds that Mr. Sarcone is unlawfully appointed.   

Ms. James’s efforts to dismiss the case are likely to lean on a Truth Social post from September written by Mr. Trump and addressed to Ms. Bondi asked “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? … They’re all guilty as hell, but nothing is going to be done. We can’t delay any longer, it’s killing our reputation and credibility.” The Wall Street Journal reports that the message may have been meant to be private but was inadvertently made public.