Three days before New York Attorney General Tish James was appointed by Governor Kathy Hochul to supersede Tompkins County District Attorney Matthew Van Houten in the investigation and potential prosecution of former Cornell Chi Phi students, she took to the twitters to make her position clear.

What this young woman has been forced to endure is horrific and unacceptable. I’m holding her in my heart and in my prayers. To her, and to all survivors: you’re not alone. We stand with you.

Nonetheless, Hochul decided that leaving Van Houten, the elected district attorney, to do his job would undermine public faith in the process and that appointing James in his place, after she made it absolutely clear where she stood on a matter about which she had conducted no investigation, would be a more publicly preferable choice. The reason seems quite obvious: James would make sure these young men were prosecuted, which was the outcome Hochul desired to satisfy the lust for punishment.

Andrew Miltenberg, attorney for one of the young men and perhaps the most prominent Title IX lawyer in the nation, brought an Article 78 proceeding, the mechanism under New York law by which official actions such as this are challenged, to annul Hochul’s appointment and disqualify James as prosecutrix.

Through this official public statement, Attorney General James has made clear that she has formed an opinion about the case, that she believes the allegations made by Jane Doe, and that she has already reached the conclusion that Petitioner and the other named Defendants are guilty.

Accordingly,, because Attorney General James is not and cannot remain neutral in investigating this matter, there is a substantial likelihood of prejudice to Petitioner if Attorney General James is permitted to remain on as Special Prosecutor.

For the reasons that follow, Governor Hochul’s appointment of Attorney General James as Special Prosecutor in the investigation of the Cornell matter must be voided.

There is nothing wrong, nor unusual, about prosecutors being biased against crime and the individuals who, after a fair investigation of the facts, commit them. Indeed, it’s pretty much expected of prosecutors. But that’s not what’s at issue here. James’ proclamation came before she conducted any investigation into whether a crime has been committed and whether the individuals involved committed the crime.

Having already made clear her position, reflecting both her bias and her poor judgment and lack of concern about announcing her bias publicly despite having no basis upon which her convictions can rationally be based, there can be no doubt that she lacks the capacity to exercise the vast prosecutorial discretion necessary to exercise the vast prosecutorial power she would wield against these young men. Will she seek out and consider exculpatory evidence? Will she fairly evaluate facially conflicting statements by Jane Doe or grasp excuses to rationalize them away? Will she do everything in her power to indict, whether proper or not, and put the young men through the burdens of prosecution just to prove survivors “are not alone” and she “stands with them”? Her statements certainly leave no doubt.

But as with most legal matters, it’s not quite that simple. At this stage, Tish James hasn’t done anything, good, bad or otherwise, to which the petitioners can point as demonstrably improper. Sure, she said it, but she hasn’t yet done the dirty toward this matter to demonstrate that her words on twitter weren’t mere hyperbolic pandering, as James is prone to do, and that she will perform the job of a prosecutor with the honesty, integrity and fairness demanded of her.

In other words, should the law require her to engage in objectively and provably improper and biased conduct before it’s ripe to challenge her appointment?

The problem is twofold. First, the conduct of her investigation and the underlying decisions that go into her pursuit of these young men are largely hidden from view. We see the outcomes, but not so much the process, enabling James to create the appearance of impartiality while dedicating all her efforts and resources to making damn sure she nails these young men to the wall. And that cohort of the public to which Hochul and James pander will thrill at the outcome, secure in the belief that it’s fair because she got the male students they demanded she get.

The second problem is the old saw, “you can beat the rap but you can’t beat the ride.” By the time James’ investigation and prosecution reach the point where the evidence that she acted in conformity with her advance proclamation that what happened was “horrific” and that Jane Doe was the “survivor,” these young men will be put through the wringer of a high-profile prosecution that will wreak havoc with their lives, suffer huge expense and cause damage that cannot be undone by the belated epiphany that James was every bit as biased as she said she was before her appointment.

There is no shortage of people competent to handle a fair and unbiased investigation of this matter, including DA Van Houten, whose conduct at the time this matter came to his attention was entirely reasonable and appropriate given Jane Doe’s sworn and signed statement before him. This is hardly a matter that demands James’ appointment for lack of anyone else to do the job. Why appoint someone who has voluntarily tainted herself in advance by leaving no doubt that she had prejudged the outcome and would act to make sure her bias came to fruition?

Hochul issued the tepid and routine response that she’s sure James will be fair and professional, which does nothing to undo the damage James did to herself. Did anyone expect Hochul to issue a statement that, “sure, James will be biased as can be, but that’s why I appointed her?”

James has disqualified herself for her open and notorious bias in favor of Jane Doe and against the young men. Her appointment should be voided, and the matter should be handled by either Van Houten or someone who can be trusted to actually be fair, before more damage is done. More, because these young men have already been attacked by the media, named and castigated for “crimes” that have yet to be proven and most likely never will be if they are investigated by a fair and impartial prosecutor.

Update: The Order to Show Cause has been signed by Judge James Farrell, with the return date of October 29 for Governor Hochul to show cause why the appointment should not be voided.