The report announcing that no criminal charges would be brought against Joseph Biden for mishandling classified materials brought an unsurprising response from Donald Trump \u2013 that this was \u201cselective prosecution.\u201d As he stated in a speech to the NRA, \u201cIt was just announced that Joe Biden\u2019s Department of Injustice will bring zero charges against crooked Joe despite the fact he willfully retained undisclosed droves of ultra-classified national security documents.\u201d Trump added \u201cif he\u2019s not going to be charged, that\u2019s up to them, but then I should not be charged.\u201d<\/p>\n
And this claim has now been made in court papers, as Trump\u2019s lawyers in the documents case filed a new pleading calling it<\/p>\n
a case that should have never been brought and must ultimately be dismissed on the basis of, inter alia, selective and vindictive prosecution. Yesterday, the U.S. Department of Justice released a report issued by Special Counsel Robert Hur, finding that President Biden has \u201cwillfully retained and disclosed classified materials after his vice presidency when he was a private citizen,\u201d over the course of his decades-long career. President Biden will not be charged, and President Trump should not have been either.<\/p>\n
Why is the cry fake? Prosecutors \u2018select\u2019 who to charge all the time; the discretion to do so is an essential tool for achieving justice. The American Bar Association\u2019s standards command that a prosecutor \u201cshould act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances.\u201d<\/p>\n
If being selective is indeed proper, then what is a \u201cselective prosecution\u201d challenge to being charged and forced to stand trial? It is where the difference between who is charged and who is not is discriminatory, all other facts being equal. The Supreme Court explained this in 1996 \u2013 what is not allowed is a decision based on \u201crace, religion or other arbitrary classification\u201d and the accused<\/p>\n
must show that \u201cthe administration of law is directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive” that the system of prosecution amounts to \u2018a practical denial\u2019 of equal protection of the law.\u201d This can extend to a prosecution based on political beliefs if that is the deciding factor.<\/p>\n
But why is this case \u2013 no charge for Mr. Biden, multiple charges for Mr. Trump \u2013 not a First Amendment claim and not a selective prosecution in the nefarious sense of that phrase? The answer is simple \u2013 the two cases have radically different circumstances. This was captured best by the former-Trump-Justice-Department prosecutor who chose to not charge the current President:<\/p>\n
[A]fter being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation.<\/p>\n
Two cases, too different to even have a plausible claim of unfair treatment. Donald Trump was \u2018selected\u2019 to be prosecuted; but his prosecution is not \u2018selective.\u2019<\/p>\n","protected":false},"excerpt":{"rendered":"
The report announcing that no criminal charges would be brought against Joseph Biden for mishandling classified materials brought an unsurprising response from Donald Trump \u2013 that this was \u201cselective prosecution.\u201d As he stated in a speech to the NRA, \u201cIt was just announced that Joe Biden\u2019s Department of Injustice will bring zero charges against crooked Joe despite the fact he willfully retained undisclosed droves of ultra-classified national security documents.\u201d Trump added \u201cif he\u2019s not going to be charged, that\u2019s up to them, but then I should not be charged.\u201d And this claim has now been made in court papers, as Trump\u2019s lawyers in the documents case filed a new pleading calling it a case that should have never been brought and must ultimately be dismissed on the basis of, inter alia, selective and vindictive prosecution. Yesterday, the U.S. Department of Justice released a report issued by Special Counsel Robert Hur, finding that President Biden has \u201cwillfully retained and disclosed classified materials after his vice presidency when he was a private citizen,\u201d over the course of …<\/p>\n","protected":false},"author":20,"featured_media":7216,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[],"audience":[],"coauthors":[40,1052],"class_list":["post-7213","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-faculty-commentary"],"yoast_head":"\r\n