Selective Prosecution Against Trump

There are two brief but powerful statements about law and justice etched in stone upon the two buildings in Washington, D.C. which house those most responsible for carrying them out. On the Department of Justice building, on its most visible Pennsylvania Avenue side, these words appear: “Where law ends tyranny begins.” On the Supreme Court building we behold: “Equal Justice Under Law.”

Both of these precepts can only have authentic meaning if selective enforcement of the law for improper purposes is avoided. Where law ends is where discretionary enforcement begins, and it will be tyranny if carried out selectively for improper ends. Equal justice under law also cannot exist if carried out with such selectivity.

It is for that reason that from the earliest times of American jurisprudence, the courts have said that “the law always watches the exercise of discretionary power with a jealous eye.” If it did not do so, “equal justice” would soon be a mockery.

Millions of Americans in the court of public opinion are already wondering how the selective prosecutions of Trump can be allowed to go forward. The main reason is that the Supreme Court has proclaimed reluctance to stop selective enforcement except in extreme cases, because of “the traditional discretion of the prosecutor to charge.” Yet the Court does not consider itself impotent to step in if selective enforcement becomes sufficiently outrageous.

The lead case is United States v. Armstrong, 517 U.S. 456 (1996). In it the Court established two elements for taking action: 1) “a discriminatory effect”, and 2) motivation “by a discriminatory purpose.”

If the court of opinion has any voice, both of these elements are already clear in the multiple cases brought against Trump — 91 criminal counts in four cases, plus civil lawsuit attacks.

The discriminatory effect is easily demonstrated by both: 1) the unprecedented nature of cases brought against a former President, and 2) the stark difference in treatment of those presenting legally similar cases but different politics. How can the 91 counts not be selective, when in all American history not one — repeat, not one — has ever been brought against a former President, much less one also a present Presidential candidate? And given the non-prosecution of Hillary Clinton with her destruction of 33,000 subpoenaed emails and of Joe Biden with his at least five separate caches containing confidential records, the discriminatory effect is clear.

The analysis of discriminatory purpose involves two steps. First, is politics an impermissible basis for selective prosecution? In Armstrong the Court listed “unjustifiable” standards “such as race, religion, or other arbitrary classification.” Does one’s political party fall under the “other” category? Surely it must do so even more than the important categories of race and religion, for otherwise we would live in a Banana Republic instead of a Democracy. And the most penetrating student of selective prosecution, University of Chicago Law professor Kenneth Culp Davis explicitly condemned “political considerations” as an impermissible category. (3) The principle that no one should be prosecuted for partisan motives is so clear that it hardly need be stated. Even the notoriously political Judge Samuel Chase declared in 1800:

The decision of courts of justice will not be influenced by political…prejudices…political motives… never ought to enter courts of justice.

Second, can it be shown that the prosecution(s) of Trump are motivated by political considerations? Such is the easiest demonstration of all, since the elective prosecutors involved openly expressed their plans to “get Trump” as their campaign promises, and numerous Democrat leaders have expressed satisfaction that the prosecutions will at the least hinder if not derail Trump’s campaigning.

In sum, the American people can see what is obviously going on. The only remaining questions are whether the Trump defense teams will raise the selective prosecution issue and if so, how the courts will respond. Selective enforcement in pursuit of political agendas constitutes “an existential threat to our Democracy” and should not be allowed.