By Teri Kanefield and Mark Reichel / Special to The Washington Post
Allen Weisselberg, the Trump Organization’s chief financial officer, surrendered to authorities Thursday morning after a grand jury handed up indictments for him and the company. A Trump Organization spokesperson issued a statement claiming that Weisselberg “is now being used by the Manhattan District Attorney as a pawn in a scorched earth attempt to harm the former President. The District Attorney is bringing a criminal prosecution involving employee benefits that neither the IRS nor any other District Attorney would ever think of bringing. This is not justice; this is politics.”
That statement should sound familiar to anyone who has followed former President Trump’s responses to the Mueller probe and his two impeachments. It’s another version of “It’s a witch hunt!”; a refrain Trump repeatedly employed as he tried to present himself as the victim of a politically motivated probe.
There’s a legal name for the defense that the Trump Organization is alluding to here: selective prosecution. But when we recognize what selective prosecution is (and, more importantly, when it doesn’t apply), it quickly becomes clear that this statement is little more than hot air. If anything, in the process of providing a blustering but legally meaningless defense, it seems to be acknowledging that the Trump Organization did engage in the alleged wrongdoing.
Selective prosecution comes into play when a criminal defendant has been arrested and charged based on an unjustifiable standard such as race, religion or some other arbitrary classification. The Supreme Court has held that selective prosecution exists where the enforcement or prosecution of a criminal law is “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive” that the administration of the criminal law “amounts to a practical denial of equal protection of the law under the Fourteenth Amendment.”
This is key: The discrimination would have to be based on a category considered protected. Protected categories includes race, gender and religion; “former U.S. president” and “rich guy well-known for shady business practices” are not protected categories.
If 20 cars speed down a highway and you are the driver pulled over, you have no “selective prosecution” defense unless you can present evidence that the officer intended to discriminate against you because of your race, religion or gender. If you were randomly selected — or selected on the basis of a nonprotected category (for example, the officer has a pattern of pulling over red cars) — there is nothing illegal in this, and you would have no viable defense.
A 2005 case from Tennessee provides an example in which a court found selective prosecution. While arresting Climmie Jones Jr. and his wife, Marion Jones, both of whom are Black, the two white police officers wore custom-made T-shirts depicting the Joneses with the lettering: “See ya, wouldn’t want to be ya.” Jones testified that racial slurs were handwritten on the T-shirts. During the trial, one of the officers sent a postcard to Jones depicting a Black woman with a basket of bananas on her head. The appellate court found that the postcards demonstrated racial animus, and therefore found evidence of discriminatory intent.
Critically, the prosecution of the Trump Organization and Weisselberg was not even random. Weisselberg and the Trump Organization were not selected from a large pool of corporations whose chief financial officers allegedly committed grand larceny and tax fraud. Instead, the investigation evidently started in 2018 when Trump’s former personal lawyer, Michael Cohen, while testifying before Congress, alleged that Trump, through his businesses, engaged in a host of crimes including aiding and abetting campaign finance violations, misusing charity funds and committing bank and insurance fraud. Then, in 2020, Cohen published a book, “Disloyal: A Memoir: The True Story of the Former Personal Attorney to President Donald J. Trump,” offering an in-depth account in which he claimed that he had aided and abetted Trump’s alleged cheating for years.
Piling on more evidence, Stephanie Winston Wolkoff — enraged that the Trump family tried to turn her into a scapegoat for their alleged crimes — went public in interviews and a book entitled “Melania and Me: The Rise and Fall of My Friendship with the First Lady.” She alleged, in shocking detail, that she was set up by the Trumps as a scapegoat to take the blame for a missing $27 million from the Trump inauguration funds. The Trump family also has a history of questionable business dealings. To take two recent examples, the Trump Foundation paid $2 million to settle a case in which the Trumps were accused of misusing charity funds, and Trump paid a $25 million settlement to the “victims of his fraudulent university,” according to the New York attorney general.
In other words, prosecutors have every reason to investigate the Trump Organization’s business practices and dealings. Indeed, given Trump’s history, it isn’t “selective prosecution” when prosecutors take into consideration Cohen’s testimony. To the contrary, ignoring those allegations would give the Trump Organization preferential treatment. The prosecution of the Trump Organization is nothing like a car being selected out of dozens of cars speeding. Given how much we know and how long we’ve known it, it is more like a single car was driving recklessly for years through town while law enforcement deliberately closed their eyes because of who happened to be driving the car.
Evoking selective prosecution is also a procedural defense that basically amounts to an admission that the crime happened. The defense claims that others did it, too, but the defendants were singled out for prosecution. The idea is that the defendant may be guilty, but the case should be dismissed because the prosecution violated the defendant’s Fourteenth Amendment rights. In this case, though, “Yes, I did it, but others did it, too, so why are you going after me?” — which is what the Trump Organization seems to be saying in its statement — is not a viable legal defense, since there’s no reason to believe anyone’s rights were violated in the prosecution of the alleged offenses.
All told, the Trump Organization took two somewhat contradictory positions simultaneously. In court, it pleaded not guilty. To the public, it effectively said “guilty” but said others were also guilty. Such statements from the Trump Organization must therefore be understood as political spin that attempts to paint chronic cheaters as victims. In the process, they suggest that failing to single Trump out for special treatment amounts to political prosecution.
That’s nonsense, of course. This prosecution is nothing more than a case of the Trump Organization’s leaders pushing their luck too far.
Teri Kanefield is an author and a graduate of the University of California Berkeley School of Law. For 12 years, she maintained an appellate law practice in California. Mark Reichel has been a practicing attorney for 30 years, representing clients at the trial and appellate level in state and federal courts.