The United States Supreme Court has held that “A selective prosecution is not a defense on the merits of the criminal charge itself, but an independent assertion that the prosecutor brought the charge for reasons prohibited by the Constitution.” United States vs. Armstrong, 517US 456 (1996). The defendant must demonstrate that “the prosecution’s policy ‘had a discriminatory effect and was motivated by a discriminatory purpose.'” Tyler vs. Boles368US 448 (1962).
Among the discriminatory purposes prohibited 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 correct on the merits of the four criminal cases filed against him and the civil fraud case in New York State. But I also think that all five of these lawsuits against Trump are nothing more than a political witch hunt motivated by political ambition in the two cases brought by New York State Attorney General Letitia James and District Attorney Alvin Bragg, respectively. Trump’s First Amendment rights are being stripped by discriminatory lawsuits brought against him because of his political views in flagrant violation of the First Amendment and the Equal Protection Clause.
The New York civil suit in which Trump risks being fined $370 million for fraud and barred from doing business in New York State is a victimless crime. No bank or lender has complained that Trump defrauded them, and the Democratic state attorney general’s allegations that Trump inflated the value of his assets to obtain favorable loans is standard practice in the New York real estate market . The banks that lent Trump the borrowed money discounted the value of Trump’s assets from what they stated, just as they do with every other real estate mogul in the New York real estate market. Letitia James filed this civil lawsuit because New York State Democrats are suffering from Trump Derangement Syndrome and James wants to win some future New York Democratic primaries. By doing so, James is violating Trump’s First Amendment rights and his rights under the Equal Protection Clause. James would have to show that some other New York businessman has been sued for hundreds of millions of dollars and threatened with a ban from doing business in New York for behavior like Trump’s. She can’t do that because the politically charged Trump lawsuit she filed against Trump is one of a kind.
Alvin Bragg’s prosecution of Trump for paying hush money to Stormy Daniels and failing to report it as a campaign expense is also a case of selective prosecution. John Edwards, who ran for vice president alongside John Kerry in 2004, had used more than $1 million in campaign money to hide his illegitimate affair. The Edwards case led the U.S. Department of Justice to adopt guidelines against allegations related to the use of campaign funds to cover up sexual affairs. If John Edwards can handle it, then so should Donald Trump. This is another case of selective prosecution based on Trump’s political views to persecute him so that Alvin Bragg can win the Democratic primary in New York for higher elected office.
The federal classified documents criminal case brought to 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 in her home, which she illegally used 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 criminal law. More recently, President Joe Biden was cleared of charges for violating the law related to classified documents kept at home. Donald Trump, however, is being prosecuted for mishandling classified documents. This is a blatant double standard for Republicans and Democrats on handling classified information. Once again, Trump is being selectively prosecuted in violation of the First Amendment and the Equal Protection Clause.
The January 6, 2021 charges against Donald Trump are also patently unfair. For starters, Jack Smith is an unconstitutionally appointed special counsel for the reasons I outlined in my law review article with Gary Lawson: Why was Robert Mueller’s appointment illegal? 95 University of Notre Dame Law Revision 87 (2019). All Trump did on January 6, 2021 was give his followers a fiery speech and exhort them to “fight like hell.” Trump never urged his followers to stop counting each state’s electoral votes. Trump had a First Amendment right to give the speech he gave at the Ellipse, and he is once again the victim of selective prosecution in violation of the Equal Protection Clause.
As for the Georgia case, Fani Willis is trying to win future Democratic primaries by attacking Donald Trump during a phone call in which Trump exercised his First Amendment rights to ask if more votes could be found for Trump in Georgia. This is once again a 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 academia bend dramatically to favor liberals over conservatives. So I identify with what Trump is going through in terms of selective prosecutions. Trump’s First Amendment and Equal Protection Clause rights are being blatantly violated, and the United States Supreme Court should put an end to this travesty now.