More and more, individuals accused of crimes are asserting that their prosecutions are driven by political motives or personal vendettas. Although some of these claims might seem valid at first glance, they seldom succeed in court.
This is largely due to the considerable discretion prosecutors hold when deciding who to charge and whom to offer plea deals. Consequently, individuals involved in the same crime often encounter vastly different treatment.
That said, the power of prosecutors isn’t without limits. If their decisions appear arbitrary, it could raise concerns about violations of constitutional principles related to equal protection. Still, cases demonstrating discriminatory enforcement are quite rare.
The topic of selective prosecution has come up lately as critics claim the Justice Department has shown favoritism toward associates of President Trump while targeting his adversaries. A notable example is the withdrawal of a case against New York Mayor Eric Adams, which many viewed as a trade-off for his cooperation on immigration issues. In another instance, federal prosecutors canceled an investigation into Rep. Andy Ogles (R-Tenn.) after he introduced legislation related to Trump’s ability to run for a third term.
On the flip side, the Justice Department has created a special “Strike Force” to look into allegations that former President Obama, along with figures like ex-FBI Director James Comey and former CIA Director John Brennan, conspired to misrepresent Russian interference in the 2016 election to undermine Trump. Recently, the Justice Department initiated a civil rights investigation involving New York Attorney General Leticia James, a longtime opponent of Trump, who has launched significant lawsuits against him. Just days ago, the FBI searched the office and residence of John Bolton, a former Trump national security advisor.
The question remains: If the Justice Department brings charges against Obama, Comey, Brennan, James, or Bolton, are these actions unconstitutional and selectively prosecutorial? The answer is complicated.
Historically, the concept of discriminatory law enforcement was first acknowledged by the Supreme Court about 140 years ago in the case of Yick Wo v. Hopkins. Yick Wo, a Chinese man, was convicted for violating a San Francisco ordinance that banned operating wooden buildings without a license. Yet, out of hundreds of Chinese operators, only he was found guilty, while all non-Chinese counterparts received licenses.
The court ruled that such disparities could demonstrate “evil eyes and unjust hands,” indicating bias against applicants based on race and nationality.
Nonetheless, Yick Wo’s case is quite exceptional. It’s tough to find similar examples where disparities in enforcement are so evident.
In many cases where claims of selective prosecution are filed, courts have maintained that simply demonstrating unequal treatment by prosecutors does not suffice to establish a constitutional violation. To prove discriminatory enforcement, defendants must show both a discriminatory effect and discriminatory intent.
To establish discriminatory effects, a defendant must illustrate that they are in a comparable situation to others who were not charged. For proof of discriminatory intent, one must provide evidence that choices were made based on arbitrary, unacceptable considerations.
For instance, to assert racial discrimination, a defendant would need to show that only Black individuals were charged while white individuals were not. Or, to allege political bias, one would have to demonstrate that only Democrats faced charges while Republicans were exempt.
Even if discriminatory effects can be demonstrated, a defendant must still prove they were targeted for questionable reasons. This level of evidence is extremely challenging, as it would require insights into the prosecutor’s mindset, illustrating a malicious intent rooted in unconstitutional grounds such as race, religion, or rights to free speech.
Courts generally assume that prosecutors operate in good faith, aiming to uphold laws. They are often hesitant to intervene because they are unaware of the numerous factors influencing a prosecutor’s decision-making process. As noted by the Supreme Court in a 1962 ruling, “The conscious exercise of any selectivity in enforcement is not in itself a constitutional violation.”
Thus, proving selective prosecution poses a significant hurdle for defendants. Mere claims about the current political climate do not adequately demonstrate discriminatory intent. However, specific remarks from high-ranking law officials can serve as circumstantial evidence of such intent.
It may appear that the Justice Department is enforcing the law selectively to protect Trump’s allies while targeting his foes. Yet if there’s substantial evidence of wrongdoing by the defendant, the arduous task of proving ulterior motives means that challenges to the enforcement policies may ultimately falter.
