Why Trump's claim of 'vindictive and selective prosecution' fails the legal test

Two legal experts delivered a linguistic smackdown of former President Donald Trump's latest claims during the latest episode of the "Prosecuting Donald Trump" podcast released after Thanksgiving.

Former longtime prosecutors Andrew Weissmann and Mary McCord walked through the accusations Trump made over the holiday, claiming that he is being selectively prosecuted in a manner that is retaliatory and vindictive.

Both claims are false and, as Weissmann said, it simply isn't the way the law works. Trump's attacks came about a month after he filed an appeal to dismiss his federal 2020 case because he believes he's being targeted.

There are two major things that must be proven for a defendant to successfully claim selective or vindictive prosecution, Weissmann began.

"You have to show that there is both a discriminatory purpose and effect," he explained. "So, what do I mean by that? It's that you have to be showing that the person acted with the intent to single this person out for an improper reason, such as an assertion in the First Amendment, race, or religion. That's just the intent standard. The effect standard, as you said, Mary, that similarly situated people at the same level of culpability, with the same quantum or similar quantum of proof, were not prosecuted."

Essentially, one must consider what it is that the person is alleged to have done and how others who have allegedly committed similar offenses have been treated.

So, if Trump is being prosecuted while many others who committed the same crime aren't, then he could claim he's being targeted unfairly. As it stands in the federal 2020 election case, there might be others who are prosecuted in addition to Trump, as what is happening in Georgia.

"Then also you look at the quantum of proof, because as we know, prosecutors — a lot of times you decide, yeah I'd love to be able to prosecute these 10 people, but I only have proof is to three of them," Weissmann continued. "The law is very much weighted on a strong presumption of regularity and against a defendant making this claim."

As for vindictive prosecution, it's relatively similar. The way he's seen it used in the past was if a defendant appealed something, and because they appealed, they were charged with something else. The idea, he said, is that the only reason for the charges is because of the actions in court.

McCord said that such claims usually arise when prosecutors go on the attack against a defendant by using their constitutional right to an appeal by trying to punish them with far worse charges.

Neither of those meet the standard that Trump is alleging. In his case, he's claiming that the selective and vindictive prosecutions are coming from President Joe Biden directly, despite the fact that there is no evidence to back such a claim up.

Listen to the podcast here.