The Volokh Conspiracy

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Donald Trump is the Victim of Selective Prosecution

Trump is the victim of political witch hunts by Democrats suffering from Trump derangement syndrome


The U.S. Supreme Court has said that "A selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." United States v. Armstrong, 517 U.S. 456 (1996). The defendant must prove that "the *** prosecution policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose.'" Tyler v. Boles, 368 U.S. 448 (1962).

Among the discriminatory purposes, which are barred by the selective prosecution doctrine are discrimination involving the Equal Protection Clause and on the basis of race, religion, sex, gender, or political alignment. I think Donald Trump is absolutely right on the merits in the four criminal cases which have been brought against him and in the New York State civil fraud case. But, I also think that all five of these legal actions against Trump are nothing less than a political witch hunt that is motivated by political ambition in the two cases brought respectively by New York State Attorney General Letitia James and by District Attorney Alvin Bragg. Trump's First Amendment rights are being stripped away by discriminatory legal actions brought against him because of his political views in flagrant violation of the First Amendment and the Equal Protection Clause.

The New York civil case in which Trump is at risk of being fined $370 million for fraud and being barred from ever doing business in New York State again is a victimless crime. No bank or lender complained that Trump had defrauded them, and the Democratic State Attorney General's accusations that Trump inflated the value of his assets to get favorable loans is standard practice in the New York real estate market. The banks that loaned Trump the money he borrowed discounted the value of Trump's assets from what he claimed, just as they do with every other real estate mogul in the New York real estate market. Letitia James brought this civil action because New York State Democrats suffer from Trump derangement syndrome, and James wants to win some future New York Democratic primary. In doing so, James is violating Trump's First Amendment rights and his rights under the Equal Protection clause. James should have to show that some other New York businessman has been prosecuted for hundreds of millions of dollars and threatened with a ban on doing business in New York for conduct like Trump's. She cannot do that because the politically charged Trump lawsuit she has brought against Trump is one of a kind.

Alvin Bragg's indictment of Trump for paying hush money to Stormy Daniels and not reporting it as a campaign expenditure is also a case of selective prosecution. John Edwards, the Vice Presidential running mate along with John Kerry in 2004, had used more than $1 million in campaign money to hide his very own illegitimate affair. Edwards case led to the U.S. Justice Department adopting guideline against bringing charges about the use of campaign funds to cover up sexual affairs. If John Edwards gets off, then Donald Trump should too. This is another case of selective prosecution based on Trump's political views to go after him so Alvin Bragg can win a Democratic primary in New York for some higher elective office.

The criminal federal classified document case brought in Florida by Jack Smith is yet another travesty of unequal justice based on party affiliation in violation of the First Amendment and the Equal Protection Clause. For years, Barack Obama knew that Hillary Clinton, as Secretary of State, had an insecure personal computer at her home, which she was illegally using to store and exchange highly classified top secret information. Neither Obama nor his Attorney General Loretta Lynch chose to prosecute Clinton for these violations of the criminal law. Most recently, President Joe Biden was excused from prosecution for violations of the law concerning classified documents stored in one's house. Donald Trump, however, does get prosecuted for mishandling classified documents. This is a blatant double standard for Republicans and Democrats on the handling of classified information. Again, Trump is being selectively prosecuted in violation of the First Amendment and the Equal Protection Clause.

The January 6th, 2021 indictments of Donald Trump are also blatantly unfair. To begin with, Jack Smith is an unconstitutionally appointed Special Counsel for reasons I point out in my law review article with Gary Lawson: Why Robert Mueller's Appointment Was Unlawful? 95 Notre Dame University Law Review 87 (2019). All Trump did on January 6, 2021 was to give his followers a fiery speech and urge them to "fight like hell." Trump never urged his followers to disrupt the counting of the Electoral votes from each state. Trump had a First Amendment right to give the speech he gave at the Ellipse, and he is again the victim of a selective prosecution in violation of the Equal Protection Clause.

As for the Georgia case, Fani Willis is angling to win a future Democratic primary by going after Donald Trump over a phone call in which Trump exercised his First Amendment rights to ask if more Trump votes could be found in Georgia. This is again selective prosecution of Trump by a Democratic prosecutor in violation of the Equal Protection Clause.

In my 34 years as a law professor, I have repeatedly seen the rules in legal academia bent dramatically to favor liberals over conservatives. I thus identify with what Trump is going through in terms of selective prosecution. Trump's First Amendment and Equal Protection Clause rights are being flagrantly violated, and the U.S. Supreme Court should put an end to this charade now.