(The Center Square) – Former President Donald Trump’s attorneys have signaled that they are planning to allege their client is the victim of selective prosecution, a procedural defense that argues the criminal justice system discriminated against Trump by bringing charges.
Trump, 77, is the front-runner for the Republican nomination for president. However, he faces legal challenges across the country as he seeks the GOP nomination, including four criminal cases, two of which were filed in federal court by special counsel Jack Smith.
In June, Trump pleaded not guilty to 37 counts that allege he kept sensitive military documents, shared them with people who didn’t have security clearance, and tried to thwart the government’s efforts to get them back. In August, Trump’s attorneys entered a not-guilty plea on his behalf to additional charges in the documents case. Charges in a superseding indictment allege Trump attempted to delete surveillance video at his Mar-A-Lago home in Florida.
Trump’s attorneys said a recent court filing they are considering a selective prosecution motion.
“President Trump also intends to seek discovery relating to an anticipated selective prosecution motion, as well as information relating to historical practices of the National Archives and Records Administration and under the Presidential Records Act.”
David Alan Sklansky, a Stanford University criminal law professor and former federal prosecutor, said it could be a long shot for Trump.
“It’s a high bar, and Trump doesn’t appear to have any chance of meeting the requirements,” Sklansky told The Center Square. “He’d have to prove that there were other people who committed the same offense, and were equally culpable, but who weren’t prosecuted, and he’d also need to prove that he was singled out for a reason that the Constitution disallows – like race, religion, or political party. If there were Democrats who did what Trump is alleged to have done – intentionally and illegally hold onto documents with highly sensitive national security information, and then try to obstruct government efforts to locate and retrieve the documents – and they weren’t prosecuted, that might be the basis for a selective prosecution motion. But there aren’t cases like that. On the contrary, there is a long history of prosecuting people for illegal possession of classified documents regardless of their political party, and even without the kind of lies and obstruction that have been alleged in this case.”
Classified documents were discovered at the Carmel, Indiana, home of former Vice President Mike Pence in January. The FBI later conducted a five-hour voluntary search of Pence’s home and found another classified document. In June, the U.S. Department of Justice closed its investigation into the matter without bringing charges.
Classified documents also turned up in President Joe Biden’s possession. Between November 2022 and January 2023, Biden’s attorneys found classified documents at his former office and his Delaware home. Biden then voluntarily allowed federal authorities to search his properties for additional materials. To date, no charges have been filed in that case.
But Trump’s documents case is different than both of those, said Cheryl Bader, a clinical associate professor at Fordham University and a former federal prosecutor.
“I think the circumstances of Trump’s case are quite unique, particularly because he was given every opportunity to voluntarily turn over these documents and didn’t,” she told The Center Square. “There are attorneys who kept copious notes about Trump’s instructions regarding how these documents should not be turned over.”
Bader said people have been prosecuted for mishandling classified documents from both parties.
“To the extent that the court was to look and see what happened to similarly situated targets, I think that they would find that defendants have been prosecuted for less egregious conduct than Trump’s and Trump wouldn’t be able to establish a pattern of prosecuting people affiliated with the Republican Party, but not people affiliated as Democrats,” she said.
The U.S. Supreme Court set the bar high for claims of selective prosecution, said Guy Rubinstein, Clark Byse Fellow and Doctor of Juridical Science candidate at Harvard Law School.
“Criminal defendants who raise a selective prosecution claim virtually never win,” he told The Center Square. “That is a direct consequence of the Supreme Court’s strict requirements for proving selective prosecution, which some scholars have referred to as ‘insurmountable.’ “
He added: “Defendants wishing to support their claim will usually need to obtain discovery of relevant prosecutorial documents, but the discovery standard itself is highly demanding, requiring defendants to provide ‘a credible showing of different treatment of similarly situated persons’ (namely, the same kind of data whose existence they are seeking to prove to begin with – a ‘Catch-22’ situation).”
