By John W. Amberg

Amberg is a litigation partner in Bryan Cave Leighton Paisner LLP and a member of LACBA’s Professional Responsibility and Ethics Committee.  The views expressed here are his own.

Articles are provided regularly by LACBA’s longstanding Professional Responsibility and Ethics Committee.

Selective prosecution is a rare criminal defense that had its origins in California more than 100 years ago and resurfaces during times of civil disobedience and political strife.  Recently, it was raised in the Trump hush money/election interference case in Manhattan and in the prosecution of right-wing extremists in Orange County.  

In October 2016, candidate Donald Trump had a problem. For years, he had burnished his louche reputation by publicizing his sex life in New York tabloids, but recently received blowback from the Access Hollywood tape on which he bragged about grabbing women’s genitals. Now Trump learned that pornographic film performer Stormy Daniels was shopping around her account of extramarital sex with him in a Lake Tahoe hotel room (what the press later euphemistically called an “affair”). To prevent these seamy revelations from torpedoing his campaign, Trump instructed his personal attorney Michael Cohen to pay hush money to Daniels, and falsely declared that his company’s reimbursement of Cohen was for legal services.  Trump went on to win the electoral college and the presidency, and Cohen went to jail for campaign finance violations. 

On May 30, 2024, following a six-week trial in which Daniels and Cohen testified, a Manhattan jury of five men and seven women unanimously found Trump guilty on 34 felony counts of falsifying business records to commit election fraud, becoming the first president convicted of a crime. Even before the jury verdict was returned, Trump and his allies cried he was a victim of selective prosecution.[1]  However, these protests miss the mark.

All lawyers, in both civil and criminal practice, are bound by the Rules of Professional Conduct, which have been adopted with variations by all states, though prosecutors are subject to additional constraints under the ethics rules and the Constitution. Thus, California’s version of Rule 3.1(a) prohibits lawyers generally from bringing an action without probable cause and for the purpose of harassing or maliciously injuring any person, while its Rule 3.8(a) adds that a prosecutor shall not institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause.  A selective prosecution claim, however, is not a defense on the merits of the criminal charge and does not attack the probable cause for the charge; instead, it is an assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. U. S. v. Armstrong, 517 U.S. 456, 463-64 (1996). 

Selective prosecution is based on the Constitutional guarantee that no person shall be denied the equal protection of the laws which is enjoyed by other persons in like circumstances.  U.S. Constitution, Amendment XIV, § 1.  The doctrine prohibits prosecutors from charging someone with a crime based on an arbitrary or invidious classification, such as race, religion, or national origin.  Armstrong, supra.  California prosecutors must meet similar standards.[2] 

In the seminal case Yick Wo v. Hopkins, 118 U.S. 356 (1886), the petitioner (a California resident since 1861 but “still a subject of the emperor of China”) was convicted of violating a San Francisco ordinance that required laundries to be in a brick or stone building, although most laundries operated by Chinese nationals were in wood buildings. Non-Chinese operating under similar conditions were not prosecuted.  The petition complained about “this system of oppression to one kind of men, and favoritism to all others.” The Court reversed the conviction, noting that the Fourteenth Amendment is not confined to the protection of citizens, but applies to all persons.  It held the law was applied “with an evil eye and an unequal hand,” in violation of the Equal Protection Clause.[3]   

Selective prosecution also may occur in retaliation for the exercise of free speech.  During the Vietnam War, courts reversed convictions in which antiwar protesters were selectively prosecuted based on their vocal opposition to the war.  In U.S. v. Crowthers, 456 F.2d 1074 (4th Cir. 1972), priests and their followers were arrested for conducting Masses for Peace in the public concourse of the Pentagon, although the same area was used 16 times for other political and religious ceremonies. “In choosing whom to prosecute,” the court concluded, “it is plain that the selection was made not by measuring the amount of obstruction or noise but because of governmental disagreement with ideas expressed by the accused.”[4]  Citing Yick Wo, it held this violated the defendants’ right to equal protection.[5]  In U.S. v. Falk, 479 F.2d 616 (7th Cir. 1973), an en banc panel reversed the conviction of a draft resistor and ordered that he be allowed to prove that he was singled out because he claimed a First Amendment right as a conscientious objector and counseled others how to legally avoid military service, while thousands of other young men returned their draft cards without prosecution.

The government is not obligated to prosecute all possible defendants so mere selectivity in prosecution presents no Constitutional issue, and indeed, prosecutors often bring high profile cases to create an example and to send a lesson. To prevail on a selective prosecution claim, a defendant must prove that the prosecution policy had a discriminatory effect and was motivated by a discriminatory purpose. Oyler v. Boles, 368 U.S. 448 (1962). 

An appeal in Trump’s hush money/election interference case on the ground of selective prosecution is likely to fail. It is not true that no one else is prosecuted for similar crimes. In his first 15 months in office, Manhattan District Attorney Alvin Bragg filed 166 felony counts for falsifying business records against 34 people or companies.[6] 

Nor can Trump show he was prosecuted because of his race. With his family’s history of illegal discriminatory leasing, Trump has long found it expedient to accuse others of racism.  The prosecutor in the hush money/election interference case, DA Bragg, is Black, as are other prosecutors who have sued or brought charges against Trump and his companies, including New York State Attorney General Letitia James and Fulton County (Ga.) District Attorney Fani Willis.  Trump publicly accused these prosecutors of being “reverse racists,” though there is no evidence they charged him because he is white.[7]  There is no rule that Black prosecutors can only charge defendants of the same race.

Nor is it the case that Trump was charged because of his politics.  Trump repeatedly has cast himself as a victim of a prosecution engineered by the Biden administration, but the federal government has no control over the Manhattan District Attorney’s Office, doesn’t enforce state laws, and the Department of Justice has forcefully denied any involvement.[8]  Specifically, Trump cannot point to any Democrat who, “in like circumstances,” falsified business records to cover up a campaign scandal but escaped prosecution. Meanwhile, Trump has told his followers that he is their “retribution” and pledged to use the government to wreak “vengeance” on his political enemies if elected.[9]  

Recently in Southern California, a selective prosecution challenge unfolded in another political case.  District Judge Cormac J. Carney retired on May 31, 2024, but before leaving the Central District bench, he dropped a bomb.  On February 21, Judge Carney dismissed all criminal charges against two far-right white supremacist nationalists, Robert Rundo and Robert Boman, ruling they were being selectively prosecuted under the Anti-Riot Act for engaging in violence at California political rallies, while far-left extremist groups such as Antifa who engaged in similar actions were not being prosecuted. U.S. v. Rundo, Case No. CR 18-00759 CJC.  Rundo is a convicted felon and neo-Nazi who formed the Rise Above Movement (RAM), a nationalist white supremacy group, to inflict violence on its political enemies. Indicted for rioting, Rundo fled to Romania, and was extradited to the U.S. in 2023.  Boman is also a violent felon and member of RAM.

Although the Court’s Order dismissing the charges described the defendants’ ideas as “reprehensible” and said they “likely committed violence for which they deserve to be prosecuted,” it claimed they had offered evidence that members of Antifa and related far-left groups went to the same protests and rallies and engaged in the same violent acts as alleged against the defendants.[10]  Judge Carney concluded: “The government remains free to prosecute those, like Defendants, who allegedly use violence to suppress First Amendment rights. But it cannot ignore others, equally culpable, because Defendants’ speech and beliefs are more offensive.  The Constitution forbids such selective prosecution.”[11]  The Ninth Circuit Court of Appeals immediately stayed the ruling, and the government re-arrested Rundo.   

On appeal, the government argued that the case failed to meet the test for selective prosecution.  The defendants could not show a discriminatory effect because they failed to identify any similarly situated individuals. Three left-wing protestors considered by the district court were not similarly situated with respect to the number of rallies attended, the violence they inflicted, their criminal histories, or the strength of the evidence against them.[12]  Nor was there any evidence of discriminatory intent to prosecute the defendants based on their political opinions. As the government argued, it is allowed to prosecute rioters, and having a political motive for rioting is not a defense.[13]  

On July 16, the Ninth Circuit reversed the order releasing Rundo, holding that the district court clearly erred when it found he did not pose a danger to the safety of others “despite mountains of evidence in the record to the contrary,” and was not likely to flee.[14]  On July 18, the appeals court reversed the district court’s dismissal of the case, reinstated the indictment, and remanded the case for trial.[15]  Proving selective prosecution is particularly demanding, the Ninth Circuit noted, because the defendant is required to introduce clear evidence to displace the presumption of regularity, which provides that a prosecutor has acted lawfully.[16]  Here there was no clear evidence. The district court improperly compared the individual defendants to the collective conduct of groups, and relied on evidence of doubtful quality that it made no effort to authenticate.[17]  Its attempt to find an impermissible motive was guesswork.[18]  Despite its rhetorical appeal, the Rundo case illustrates why selective prosecution is a rare defense.