Possible Trump Indictment Puts Attention on Prosecutorial Discretion

WASHINGTON — The Manhattan district attorney’s looming decision about whether to seek an indictment of former President Donald J. Trump for a hush money payment to a porn actress has ignited debate over the strength of the case and how prosecutors should decide when it is appropriate to pursue charges — and when not to do so.

At the heart of the issue is the concept of prosecutorial discretion, or the leeway that prosecutors have to use their judgment in seeking to dispense justice.

In this case, the public understanding of the theory of the case being assembled by the district attorney, Alvin L. Bragg — and in particular what underlying crime he may point to in order to transform a New York law against bookkeeping fraud into a felony — remains imprecise. But some of the possibilities under discussion by outside legal specialists, including campaign finance crimes, would raise novel issues.

Against that backdrop, Mr. Trump and his allies have accused Mr. Bragg, a Democrat, of being driven by political motivations and applying the law unfairly, in what lawyers would call a selective prosecution. Even some legal specialists who have been critical of Mr. Trump have expressed uneasiness, while cautioning that much remains unknown about the facts of the case and any charges that Mr. Bragg might pursue.

Here is a closer look.

What is prosecutorial discretion?

It is a power by prosecutors in the American justice system, at both the state and federal level, to decide not to bring a case, even if the law and the facts would support a conviction. In the United States, prosecutors have broad latitude to choose among a range of options in handling a criminal case, from selecting more or less harsh charges as part of an indictment, to striking a plea bargain, to bringing no charges at all.

“In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion,” Justice Potter Stewart wrote in a 1978 Supreme Court opinion.

By contrast, in some other countries, prosecutors are supposed to bring charges whenever the evidence would support a conviction, and decisions not to prosecute can be challenged before a judge, said David Alan Sklansky, a Stanford University criminal law professor and a former federal prosecutor.

The Looming Indictment of Donald Trump

What is its purpose?

One factor behind giving prosecutors such broad latitude is that criminal laws are broadly written and do not always account for every circumstance, so sometimes the interest of justice is served by not bringing charges. Another factor is that as a practical matter, prosecutors and the court system lack sufficient resources to bring every potential case, so they have to pick and choose.

What is selective prosecution?

It is a flip side of prosecutorial discretion. If prosecutors single out one person for charges when they choose not to charge other people who committed similar offenses, the result is selective enforcement of the law. Under the rule of law, the government is supposed to treat people the same way regardless of who they are — which means treating like cases alike.

The Supreme Court has said that selective prosecution violates the Equal Protection Clause if the reason for treating one defendant differently from other potential ones is “deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification.”

Are there precedents for a potential Trump case?

It is not easy to point to a direct precedent for the case Mr. Bragg appears to be contemplating, although there are some past matters that partly overlap.

At the federal level, in 2011, the Obama-era Justice Department charged John Edwards, the former senator and Democratic vice-presidential candidate, with campaign finance crimes related to his 2008 presidential run and a supporter’s payments to a woman with whom he had an affair. A jury acquitted him of one charge and hung on others; the case was not retried.

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In 2018, the Trump-era Justice Department charged Michael D. Cohen, Mr. Trump’s former lawyer and fixer who made a $130,000 payment to the porn star Stormy Daniels in October 2016 and then was reimbursed by the Trump Organization. Mr. Cohen pleaded guilty to several offenses, including violating federal campaign finance law, and went to prison.

Court filings in that case said Mr. Cohen had “acted in coordination with and at the direction of” Mr. Trump, whom it identified as “Individual 1.” At the time Mr. Trump, as a sitting president, was temporarily immune from prosecution under a disputed but longstanding Justice Department policy. It is not clear whether the Biden-era Justice Department considered bringing similar federal campaign finance charges against Mr. Trump after he left office.

But Mr. Cohen was not charged with how the Trump Organization falsified its business records to say the reimbursements to him were for a legal retainer that did not exist — the primary state-law offense that Mr. Bragg appears to be weighing.

A study published on Tuesday on the legal blog Just Security listed various bookkeeping fraud cases against other defendants in New York, but for different factual scenarios, like an auto repair store owner whose false business records lowered his tax bill.

How might Trump claim selective prosecution?

If Mr. Trump does get charged, his lawyers may file a motion to dismiss the indictment on the grounds of selective prosecution, citing the rarity of precedents for such a case.

Such a claim by Mr. Trump could find a receptive audience outside court, shaping the optics of a prosecution that relies on an untested interpretation of New York law — if that is what happens. Paul Rosenzweig, a former prosecutor in the independent counsel investigation of President Bill Clinton, said that while he thought Mr. Trump should go to prison, he worried that “this may be the wrong case to do it.”

“This has a bit of the Al Capone-y feel to it — where they got him on the tax evasion because they couldn’t get him on murder — which is acceptable if and only if you are convinced of the fundamental criminality of Al Capone,” Mr. Rosenzweig said. “I accept that as to Trump, but tens of millions don’t.”

Would such a claim succeed in court?

Probably not, according to legal specialists.

Professor Sklansky said the burden would be on Mr. Trump to show that the Manhattan district attorney’s office had chosen to look the other way when other people did similar things within its jurisdiction. It is not clear there are any other examples of New Yorkers falsifying business records to cover up a hush money payment during a campaign.

Angela J. Davis, an American University law professor and former public defender who has written about prosecutorial discretion, agreed that it would be hard for Mr. Trump to prevail in any court effort to get the case dismissed.

“Selective prosecution is a really difficult thing to prove,” she said. “It’s very difficult to show that similarly situated people could have been prosecuted but were not.”

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