Trying to get a criminal case tossed on the basis of vindictive prosecution is usually considered a Hail Mary, but experts said the Trump Justice Department is about to test that.
Three of the targets of high-profile criminal prosecutions have already moved to dismiss their cases for vindictive or selective prosecution, and more are expected.
In Tennessee, Kilmar Abrego Garcia, the country’s most prominent illegal immigrant, said the only explanation for why the government reopened a closed migrant smuggling investigation against him is that he’d embarrassed the government by showing his March deportation was illegal.
In Virginia, former FBI Director James Comey says the case accusing him of lying to Congress was brought to appease President Trump, who for years has shown “overt hostility” to Mr. Comey.
And in New Jersey, U.S. Rep. LaMonica McIver, a Democrat, said the case accusing her of bashing ICE officers with her forearm is an attempt to scare members of Congress into dropping pressure on U.S. Immigration and Customs Enforcement, the government’s deportation agency.
Experts said that’s a startling — and likely record — pace of claims.
SEE ALSO: Trump says keeping the filibuster could cost GOP future elections
They attributed it to what they saw as a departure from normal operations from Mr. Trump and the Justice Department itself, where they said Attorney General Pam Bondi has shown a striking willingness to follow the president’s wishes.
“These are strange times,” said Bennet L. Gershman, former state prosecutor and now a law professor at Pace University. “The pattern is very clear. These are prosecutions that are done to serve the president, to satisfy his desire for revenge. It’s pretty transparent. The question is whether the judges will go along with the prosecution.”
Vindictive prosecution is when a court finds that authorities have brought charges as punishment for someone exercising their rights. Selective prosecution is when a court finds the government brought a case against someone that it wouldn’t have — and indeed, hadn’t — brought against others in the same situation.
Jonathan Fahey, a lawyer at Holtzman Vogel who served as a federal prosecutor in Virginia for 17 years, said it’s difficult for a defendant to prove either.
One reason, he said, is that judges are usually reluctant to probe prosecutors’ motives and usually conclude that whatever was behind the decision to bring the case, the fact that it survived a grand jury indictment process — and, eventually, a trial — is sufficient to prove the legitimacy of a case.
“These are rarely filed, and I think part of that is because the bar is so high,” he said.
Peter A. Joy, a law professor at Washington University, said even having the president publicly call for a prosecution probably wouldn’t be enough.
But he said showing that other prosecutors reviewed the case and didn’t bring charges before could carry weight.
He said even if judges don’t immediately dismiss a case, they can grant legal discovery, which would give the defendants’ teams a chance to ask questions of key individuals or, perhaps, to pry loose documents that could shed light on decision-making.
In the case involving Mr. Abrego Garcia, U.S. District Judge Waverly Crenshaw has already found “some evidence of vindictiveness” and ordered a hearing to explore the issue.
The judge said it was curious that federal investigators closed a criminal investigation into Mr. Abrego Garcia, then reopened it once it was clear they were going to have to un-deport him. The charges stem from a 2022 encounter with police in Tennessee, where he was found driving a carload of what police determined to be illegal immigrants.
Mr. Abrego Garcia’s lawyers say he’s being punished for daring to challenge his deportation.
Mr Comey’s vindictive and selective prosecution argument rests on Mr. Trump’s long history of “overt hostility” to the former FBI director.
He said there’s no other reason why the Justice Department rushed to bring the case just under the statute of limitations for years-old statements the indictment says amount to lying to Congress.
Mr. Comey, in arguing selective prosecution, also said former senior officials from Mr. Trump’s first term made false statements to Congress, yet weren’t charged.
More than 100 former Justice Department lawyers, including former Attorney General Eric Holder, several deputy attorneys general and dozens of U.S. attorneys, filed a brief last week backing Mr. Comey’s vindictive prosecution argument.
They said the case will send a message to Mr. Trump and the Justice Department.
“If this kind of vindictively targeted indictment is allowed to stand, it would send a dangerous signal, short-circuiting whatever internal guardrails remain within the department, and emboldening the government to target others,” they said.
The Justice Department, in a filing with the judge, said Mr. Comey’s vindictive prosecution argument is “a mix of news reports, social media posts and speculation.”
Assistant U.S. Attorney Tyler Lemons said there is a history of cases against high-level officials lying to Congress, which undercuts Mr. Comey’s selective prosecution defense. And while acknowledging Mr. Trump’s frequent attacks on Mr. Comey, Mr. Lemons said that the taint doesn’t reach Ms. Halligan, who was the actual decision-maker.
Mr. Gershman called the evidence against Mr. Comey and Ms. James “threadbare” and said it was telling that earlier prosecutors refused to present the charges.
Indeed, the Justice Department brought in a new acting U.S. attorney, Lindsey Halligan, who was willing to bring the case and, in fact, presented it personally to the grand jury.
But there are enough questions about the legality of her appointment that legal experts have suggested Ms. Halligan may be an even more likely reason for a judge to toss the case than the vindictive or selective prosecution argument.
The federal judge overseeing the James case has asked to see documents detailing Ms. Halligan’s installment.
Mr. Joy said the issue could “short-circuit” the cases Ms. Halligan has brought.
“At the end of the day, the judge would have an easier route to basically say that, especially in Comey’s case, that it was a defective indictment because Halligan didn’t have proper authority,” he said.
And given the time elapsed since the conduct at issue in the Comey case, if Ms. Halligan is deemed to be illegally serving, it could make the case impossible to revive.
It’s not just a defense tactic.
Newark Mayor Ras Baraka, who was arrested in the same New Jersey ICE clash as Ms. McIver but whose case was later dropped by the Justice Department, has filed a civil lawsuit claiming “malicious prosecution.”
And ironically, Mr. Trump himself raised the vindictive or selective prosecution defense when he was indicted by former special counsel Jack Smith on charges stemming from the 2020 election.
The president said the prosecution was an attempt to derail his 2024 election bid.
Judge Tanya S. Chutkan, a frequent Trump adversary, rebuffed him. She said there was no evidence to back up the vindictiveness claims.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
Please read our comment policy before commenting.