President Trump has openly threatened criminal prosecutions of his political enemies. Last October, NPR reported that he has made at least 100 such threats. He’s already issued an Executive Order demanding the suspension of the security clearance for Jack Smith’s pro bono lawyers at Covington & Burling. Just, well, because. Most of his Executive Order against the law firm Perkins Coie–a law firm that Trump doesn’t like–was recently enjoined.
President Trump has put into place a law enforcement team that is ready to follow his directives, including the (interim/future) U.S. Attorney for the District of Columbia Ed Martin; Attorney General Pam Bondi; Acting Deputy Attorney General Emil Bove; and FBI Director Kash Patel. Martin, for example, tweeted: “Save your receipts, [Jack] Smith and Covington [& Burling]. We’ll be in touch soon. #NoOneIsAboveTheLaw.” He’s also threatened criminal charges against Senator Chuck Schumer. Patel said last year that he wanted to get rid of “government gangsters.”
If DOJ charges someone for purely political reasons, what are the possible defenses?
Claiming “selective prosecution” or “vindictive prosecution” sounds great on paper. But the reality is that prevailing on either one is nearly impossible, even if the President has expressly promised retribution.
A warning: This post is a little more case law heavy than most of my posts; cites are in the endnotes in case they are helpful. And since these defenses rarely work, there are not a lot of cases that give a roadmap to success.
Selective Prosecution
Courts generally give prosecutors a lot of discretion in their charging decisions. (Remember that this discretion works both ways; special counsels like Jack Smith would also have discretion.) The Supreme Court has explained, “[i]n our criminal justice system, the Government retains ‘broad discretion’ as to whom to prosecute.”[1] This discretion is broad, but not unlimited: “the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights.”[2]
There are two elements of a selective prosecution claim: First, the defendant must show that he was singled out for prosecution while others similarly situated have not been prosecuted for similar conduct. Second, the defendant must show that the government’s discriminatory selection of him was based upon an impermissible ground, such as race, religion, or engaging in constitutionally protected conduct (such as free speech).[3]
Timing-wise, under Federal Rule of Criminal Procedure 12(b), a claim for “selective or vindictive prosecution” must be brought before trial.
Note that the burden is on the defendant, even though he likely does not have access to the evidence needed to meet it. A defendant may want discovery of the government’s reasons for the prosecution or data about other declined cases. The Supreme Court, however, has set the bar high for discovery on selective prosecutions claims, noting that this type of discovery “will divert prosecutors’ resources and may disclose the Government’s prosecutorial strategy.”[4] (Isn’t revealing the strategy of charging someone for impermissible reasons the whole point of this discovery request?) The Court explained [in a case based on racially selective prosecution] that the defendants needed to have evidence that “similarly situated defendants of other races could have been prosecuted, but were not.”[5]
So, under this precedent, a person charged with a crime—let’s say obstruction of justice or conspiracy—would have to show that someone who was not a political opponent of Trump could have been charged for the same conduct but was not. And the defendant needs to make this showing without access to any government documents to files.
You may be wondering whether evidence of a selective prosecution would be considered Brady material. That would be an uphill battle. Brady is limited to evidence that is material to guilt or punishment. Arguably, evidence that the prosecution is “selective” (or “vindictive,” as discussed below) is material to guilt, since charges should be dismissed as a result. The government would likely respond that this evidence is not covered by Brady since it is about the government’s conduct and not the defendant’s conduct.
Vindictive Prosecution
Related to selective prosecution is “vindictive prosecution.” This defense It may be more relevant to the Trump Administration’s public statements.
To win on a vindictive prosecution claim, the defendant must show: “(1) the prosecutor harbored genuine animus toward the defendant, or was prevailed upon to bring the charges by another with animus such that the prosecutor could be considered a ‘stalking horse,’ and (2) the defendant would not have been prosecuted except for the animus.”[6]
The cases adopt a burden shifting process. First the defendant must establish a presumption of vindictiveness by meeting the standard above. Then, the government may overcome this presumption by showing “objective evidence justifying the prosecutor’s action.”[7]
One could easily imagine a situation where President Trump “prevailed upon” a line prosecutor, through the various levels of bureaucracy at DOJ, to bring charges and that he did so with “animus.” He’s not shy about saying when he does not like someone or wishes that criminal charges would be brought against them regardless of merit.
In reality, though, prevailing on a vindictive prosecution claim will still be nearly impossible because a court would evaluate whether the charges would have been brought without the animus. Only a case with zero evidentiary basis would meet this standard. If the case has made it through a grand jury, and thus meets the probable cause standard, it may be difficult to convince a judge that there is no “objective evidence” to justify the charging decision.
What About the First Amendment Or Due Process Defenses?
Some commentators have suggested that the First Amendment or due process generally may be defenses to these political prosecutions. I’m not sure about that.
Let’s start with the First Amendment. Just a few months ago, the Supreme Court unanimously held that “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”[8]
Well, well, well.
This defense may work where the charges are truly based on political speech—for example, for a peaceful protest or comments during a speaking engagement. Keep in mind that there are no First Amendment protections for speech that is used “as an integral part of conduct in violation of a valid criminal statute.”[9] Many crimes—fraud, conspiracy, and so forth—involve communications, and the First Amendment is no defense.
This defense has rarely been invoked successfully. In a Ninth Circuit case, the court of appeals reversed a conviction for a violation of a statute that forbids someone from aiding and abetting or “counseling” someone to file a false tax return. The defendant sought a First Amendment jury instruction. The Ninth Circuit concluded that the district court erred by not instructing the jury “that the expression was protected unless both the intent of the speaker and the tendency of his words was to produce or incite an imminent lawless act, one likely to occur.”[10]
It’s not clear this would be a defense when the conduct at issue was undertaken by a government employee as part of his official duties, such as Jack Smith. Mr. Smith, for example, would presumably say that he was not expressing his personal views about what Trump did; he was carrying out his duty as the appointed special counsel. (Smarter appellate lawyers can figure this one out.)
As for a “due process defense,” that’s even more dubious. A due process violation would fall under Rule 12(b) and raised in a pre-trial motion, such as a motion to dismiss based on a “defect in instituting the prosecution” including “an error in the grand-jury proceeding or preliminary hearing.”
There is some case law that due process requires a “disinterested prosecutor” and that governmental authority be exerted in a “rigorously disinterested fashion.”[11] But the standard is mostly aimed at ensuring that an individual prosecutor does not herself have a personal conflict of interest. It is not clear that it would apply to a case where a defendant believes he was targeted for his political views.
The Best Defense?
Given the challenges of these defenses, the best defense remains to challenge the merits of the criminal charges. If DOJ brings cases for largely political reasons, and with only minimal evidence of guilt, then the only practical strategy may be to handle it like any other case. It may be possible in a case with extremely minimal evidence, and public statements by President Trump pushing spurious charges, to convince a court to order discovery of the prosecutors’ reasons for bringing the case.
Of course, the pain of a criminal investigation and prosecution is real, even if the person wins an acquittal at the end. Being under criminal indictment is stressful. And it’s expensive to defend yourself from even weak charges. That may be what the Trump Administration wants: to inflict the agony of a criminal investigation even if the person is never convicted and to invoke the case as a deterrent to others who may challenge the Trump Administration.
[1] Wayte v. United States, 470 U.S. 598, 607 (1985).
[2] Id. at 608 (cleaned up).
[3] A few cases that describe this standard: United States v. Monsoor, 77 F.3d 1031, 1034 (7th Cir. 1996); United States v. Catlett, 584 F.2d 864, 866 (8th Cir.1978).
[4] United States v. Armstrong, 517 U.S. 456, 468 (1996).
[5] Armstrong, 517 U.S. at 469.
[6] United States v. Sanders, 211 F.3d 711, 717 (2d Cir. 2000) (cleaned up).
[7] United States v. Goodwin, 457 U.S. 368, 376 n.8 (1982).
[8] Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 180 (2024).
[9] Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).
[10] United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985). The Freeman court relied on Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (per curiam).
[11] Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 810 (1987).