Thread by @CBHessick

I study prosecutorial power, so I was very interested to see what Trump's attorneys were going to say in the selective & vindictive prosecution motion they filed on Monday.
I've now read the motion and it is quite awful.
Let me explain why . . .
lawfaremedia.org/article/trump-…

First, let's start with the background idea that these motions almost always lose. Current case law gives prosecutors enormous amounts of discretion regarding criminal charging, and it basically tells judges not to review those decisions.

Unless you can show that the law has been enforced only against members of a disfavored group (e.g., a minority racial group, religion, etc) and that the enforcement patters was driven by discrimination, you will lose.

In setting out the relevant legal standard for selective prosecution, the Trump team tries to portray the case law in a very favorable light by cherry-picking some quotes from cases. But none of the cases they cite actually dismissed a case for selective prosecution.

What's worse, in their haste to find a good few quotes, Trump's team cites a D.C. Circuit opinion from then-Judge Kavanaugh in which he offers one of the most full-throated defenses of prosecutorial discretion I've ever seen!

The vindictive prosecution argument does not fair much better. We get a few case citations saying that prosecutors may not act vindictively, but no recognition that vindictive prosecution claims also basically fail all of the time because the legal standard is so high.

Moreover, the motion claims that the prosecution in DC is being undertaken in retaliation for a few different exercises of Trump's rights, including his decision to plead not guilty in the FL documents case.

But the Supreme Court held that the vindictiveness/retaliation line of cases does not apply to a prosecutor adding new charges to "punish" defendants who plead not guilty. They say this tactic is permitted because it's part of plea bargaining.

There are also several logical problems with the motion.
It uses cases weren't brought in the 1800s as proof of selective enforcement in 2023.
It argues repeatedly that Biden is biased against Trump, never acknowledging that Smith is a Special Counsel & thus insulated from the WH

I know that the news this week has been focused on the new guilty pleas in GA and the Meadows immunity deal.

And maybe the expectations for Trump legal arguments was already super low.

But this motion is embarrassingly awful & should clearly be denied under current law.