The report announcing that no criminal charges would be brought against Joseph Biden for mishandling classified materials brought an unsurprising response from Donald Trump –  this was “selective prosecution.”  As he stated in a speech to the NRA, “It was just announced that Joe Biden’s Department of Injustice will bring zero charges against crooked Joe despite the fact he willfully retained undisclosed droves of ultra-classified national security documents.” Trump added “if he’s not going to be charged, that’s up to them, but then I should not be charged.”

And this claim has now been made in court papers, as Trump’s 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 “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” over the course of his decades-long career. President Biden will not be charged, and President Trump should not have been either.

Why is the cry fake?  Prosecutors ‘select’ who to charge all the time; the discretion to do so is an essential tool for achieving justice.  The American Bar Association standards command that a prosecutor “should 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.”

If being selective is indeed proper, then what is a “selective prosecution” 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 – what is not allowed is a decision based on “race, religion or other arbitrary classification” and the accused must show that “the 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 ‘a practical denial’ of equal protection of the law.”  This can extend to a prosecution based on political beliefs if that is the deciding factor.

But why is this case – no charge for Mr. Biden, multiple charges for Mr. Trump – not a First Amendment claim and not a selective prosecution in the nefarious sense of that phrase?  The answer is simple – 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:

[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.

Two cases, too different to even have a plausible claim of unfair treatment.  Donald Trump was ‘selected’ to be prosecuted; but his prosecution is not ‘selective.’



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