Letitia James may be winning lawfare but losing the war

In an age of lawfare, New York Attorney General Letitia James has always embraced the total war option. Her very appeal has been her willingness to use any means against political opponents.

James first ran for her office by pledging to bag Donald Trump on something, anything. She did not specify the violation, only that she would deliver the ultimate trophy kill for Democratic voters. James follows the view of what Prussian General Carl von Clausewitz said about war, law is merely politics “by other means.”

Yet, the political success of James in weaponizing her office has been in stark contrast with her legal setbacks in courts.

James earlier sought to use her office to disband the National Rifle Association, the most powerful gun rights organization in the country, due to self-dealing and corruption of executives. James notably did not target liberal groups accused of similar violations. The ridiculous effort to disband the NRA collapsed in court.

It did not matter. James knew that such efforts were performative and that New York voters did not care if such attacks failed. She will continue to win the lawfare battles, even if she loses the war.

This week, two of James’s best-known campaigns were struggling in court.

James is best known for her fraud case against Trump, in which she secured a $464 million fine and a ban on Trump from the New York real estate business for three years. That penalty, which has now risen to $489 million with interest, was in a case where no one had lost a dime due to the alleged inaccurate property valuations in bank loans secured by the Trump organization. Not only where the banks fully paid on the loans and made considerable profits, but they wanted to make additional loans to the Trump organization.

In appellate arguments this week, James’s office faced openly skeptical justices who raised the very arguments that some of us have made for years about the ludicrous fine imposed by Judge Arthur Engoron.

Justice David Friedman noted that this law “is supposed to protect the market and the consumers — I don’t see it here.”

His colleague Justice Peter Moulton told her office “The immense penalty in this case is troubling” and added, “How do you tether the amount that was assessed by [Engoron] to the harm that was caused here where the parties left these transactions happy?”

The answer, of course, is the case was never about markets. It was about politics. The fact that the banks were “happy” is immaterial. Happiness in New York is a political, not legal calculus. The justices did not rule this week, but an opinion could be issued within a month.

In the same week, James faced a stinging defeat in another popular cause. James had targeted pro-life organizations for spreading supposed “disinformation” in not just opposing the use of mifepristone (the abortion pill used in the majority of abortions in the United States), but in advocating the use of reversal procedures if mothers change their minds before taking the second drug in the treatment regimen.

Critics charge that, while there are some studies showing successful reversal cases, the treatment remains unproven and unapproved. It remains an intense debate.

James, however, wanted to end the debate. She targeted pregnancy centers and was then sued by two pro-life ministries, Summit Life Outreach Center and the Evergreen Association.

Judge John Sinatra Jr. blocked James‘s crackdown as a denial of free speech. Notably, these centers were not profiting by sharing this information or advocating such reversal treatment.

James merely declared that people advocating such reversal treatments are engaged in “spreading dangerous misinformation by advertising…without any medical and scientific proof.”

It is a familiar rationale on the left and discussed in my latest book, “The Indispensable Right: Free Speech in an Age of Rage.” It is the same rationale that led to the banning and blacklisting of experts during the pandemic for views that have now been vindicated on the efficacy of masks and other issues. They were silenced by those who declared their viewpoints as dangerously unproven or unapproved, but who were themselves wrong.

James claimed a right to crack down on views that she deemed unproven, even by those who were seeking only to disseminate information rather than sell products.

It did not seem to matter to her that, in the 2018 in NIFLA v. Becerra, the Supreme Court rejected the effort by California Attorney General Xavier Becerra (now the secretary of Health and Human Services) to require crisis pregnancy centers to refer abortions.  The court refused to create an exception for requiring speech from licensed professionals.

After the effort failed to force doctors to disseminate pro-abortion information in California, James sought to prevent others from disseminating pro-life information in New York. The court ruled that, under the First Amendment, government officials cannot simply declare certain views as “disinformation” as a pretext to censor disfavored speech.

If there are harmful or fraudulent products or practices, the government has ample powers to target businesses and professionals involved with them. James, however, was seeking to silence those who advocate for a treatment that is unproven but not unlawful.

James’s legacy now includes an effort to disband a civil rights organization, deny free speech and secure confiscatory fines against her political opponents. Yet she is lionized by the media and politicians in an election that is billed as “saving democracy.”

In the end, James knows her audience, and it is not appellate judges. It does not matter to her if she is found to be violating the Constitution or abusing opponents. She has converted the New York legal system into a series of thrill-kills.

For some judges, however, the thrill may be gone.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”