Trump Will Say He’s a Political Target. That Won’t Clear Him.

Following Manhattan District Attorney Alvin Bragg’s reported move to ask a grand jury to charge the former president, Donald Trump’s lawyers likely will file motions to dismiss the indictment, arguing, among other things, that Bragg unfairly targeted Trump for prosecution.

This “selective prosecution” claim alleges a type of misconduct. Trump might argue that Bragg charged him because he doesn’t like him or his politics—but that complaint is likely to fail.

Battlefield medics might be confronted with a wrenching choice. Surrounded by soldiers with various injuries, they need to decide who to treat and who not to treat. That sorting process—or triage—is designed to maximize the number of survivors, given limited resources and time.

Prosecutors routinely confront choices cabined by limited resources and time. There is simply more crime than investigators and prosecutors could ever address. And not all crimes should be investigated and punished.

In our criminal justice system, prosecutors make a threshold determination about who gets charged, and with what crimes. Ideally, in pursuit of a public good—justice—prosecutors also employ a triage system.

Some prosecutors set thresholds to help them triage cases. Imagine a prosecutor’s office that decides financial fraud crimes resulting in losses of less than $25,000 are too small to charge, in part because there are too many such cases. Does that make sense?

Should it matter if the victim was a widowed pensioner rather than a bank? If the subject needed money for a child’s surgery rather than a gambling junket? If this was a fraudster’s tenth offense rather than their first? Thresholds can help set prosecutorial parameters, but they cannot answer every question about the just allocation of resources.

But we know what injustice looks like. We would rightly be appalled if a prosecutor used race—rather than a dollar threshold—to decide who gets charged and who does not, just as we would if a medic similarly allocated treatment by race. That may be a type of triage (or sorting) but it counters all notions of justice, decency, and fairness.

Claims of selective prosecution turn on the notion that the government discriminated, choosing to prosecute one person based on some impermissible trait (race, for example), and refused to prosecute other similarly situated people (of other races).

Here, Trump is accused in New York of falsifying books and records in connection with hush money payments to an adult film actress. Now imagine that numerous former Democratic presidents paid their paramours just before an election, then falsified the books and records of their closely held New York-based company to show the payments were for legal services rather than hush money.

Imagine, too, that prosecutors in Manhattan declined to prosecute all former Democratic presidents (because they were Democrats), and only charged the Republican—Trump. That looks like selective prosecution—charging a Republican with a crime and letting all the Democrats off the hook, though they engaged in the exact same conduct.

But that is not what happened. There are not—to my knowledge—similarly-situated Democratic presidents who got lenient treatment in New York under these circumstances. In fact, as best we know, Trump’s case is unique. He seems to be the only former president, of any party, to conceal the purpose of his hush money payments in Bragg’s jurisdiction. That makes a viable claim of selective prosecution here extraordinarily difficult.

There may be other reasons to question Bragg’s charging decision. I will leave that to another day, but a claim that New York prosecutors engaged in misconduct by selectively charging Trump seems spurious.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Chuck Rosenberg is senior counsel at Crowell and Moring and a former US Attorney, senior FBI official, and head of the Drug Enforcement Administration.

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