Of all the claims Donald Trump raised Monday in his quest to dismiss his election-related federal indictment in Washington, one of them overlaps particularly well with his paranoid political stance: that his prosecution is “selective and vindictive.”
It sounds like a made-up legal argument but it’s a real one, even if Trump isn’t likely to see it succeed.
To understand one of the reasons why, a case cited by the former president’s own legal team is helpful. In that 1970s case against a member of Congress, the appeals court said the best the defendant could do was mount a “broad assertion” of coming into conflict with the presidential administration. Trump tries to distinguish his case by cobbling together various strands to argue that President Joe Biden is the actual driving force behind the prosecution. But ultimately, a broad assertion might be the best Trump can do as well.
If we look at the sequence of events laid out in Trump’s motion, it takes a leap in logic to get to where he wants to go.
If we look at the sequence of events laid out in Trump’s motion, it takes a leap in logic to get to where he wants to go. In claiming that a vindictive motive is “manifest,” the motion notes that Trump had criticized the 2020 election’s process and results; criticized Biden and his family before, during and after the election; and criticized the special counsel’s office after he was charged in the federal classified documents case in June.
“Following those criticisms, and after President Trump exercised his constitutional right to plead not guilty in Florida,” his lawyers wrote, he was then charged in this federal case in August. From that premise, they conclude that the record is “more than sufficient to support a presumption of vindictiveness.”
But that recitation doesn’t show why the legal action was vindictive as opposed to something that was going to happen anyway, regardless of whom Trump criticized or how he pleaded to the indictment in Florida. Obviously, defendants can’t just pre-emptively complain their way out of future charges. To be sure, it’s a high bar for any defendant to raise such a claim, which is why Trump’s lawyers end their motion by asking for a hearing to explore the issue. U.S. District Judge Tanya Chutkan won’t necessarily grant one. But unless she does and it uncovers some previously unknown evidence, the motion won’t likely succeed, so Trump’s complaints on this score may be relegated to the political arena. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump prosecutions and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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