Selective and vindictive prosecution – SCOTUSblog

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

The recent federal indictments of former FBI Director James Comey and New York State Attorney General Letitia James have raised concerns, among other things, of improper selective or vindictive prosecution. These aren’t just abstract legal concepts: These doctrines are rooted in the Constitution, and there are commonsense as well as prudential reasons to support them.

The Comey and James indictments.

The remarkable background of the two indictments, within two weeks of each other, is by now familiar. President Donald Trump has long expressed personal dislike of both persons. As the five-year statute of limitations approached, Trump urged U.S. Attorney General Pam Bondi to charge Comey (in a social media post that he might have been trying to send privately). When career Department of Justice prosecutors allegedly expressed misgivings about the charges, Trump (and Bondi) forced the relevant Trump-appointed U.S. attorney to resign and installed (perhaps unlawfully) a White House assistant with no prosecutorial experience. That new U.S. attorney, Lindsey Halligan, promptly got a grand jury to approve a vague two-page indictment, alleging that Comey made a false statement (actually dating back eight years). Comey has strongly denied the charges.

Days later, Halligan obtained another two-count indictment, this time of James, again based on old facts that had been evaluated as insufficient (as had the Comey charges) by career prosecutors. Trump had railed against James ever since she campaigned in 2018 on statements against Trump and then successfully prosecuted him in 2024 on civil business fraud allegations. (Interestingly, then-private citizen Trump claimed he was the victim of vindictive and selective prosecution.) Trump urged Bondi to charge James in the same social media post mentioned above: “Pam: … What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell … JUSTICE MUST BE SERVED, NOW!!!” James has called the charges baseless and continues to serve as the state attorney general.

Meanwhile, Trump says “It’s about justice, … not revenge,” and is yet urging other “payback” prosecutions. The critique of “weaponizing the justice system” has been voiced from both sides of the political aisle, and no doubt that would be a bad development all around. But to lapse into common sense, two wrongs do not make a right.

It sure looks vindictive – but that does not win the legal argument.

“Vindictive: intended for or involving revenge.” That’s what Webster’s says. “They impeached me twice, and indicted me (5 times!)” That’s what Trump said when urging Bondi to charge. Commentators think Trump’s own words prove that he is “prosecut[ing] his political enemies” – and it does indeed look that way. Meanwhile, as noted above, the defense of tu quoque (“you too”) is a logical fallacy: just because others may have engaged in similar bad behavior doesn’t make your behavior right. If “plain meaning” interpretation is applied to legal doctrine, disposing of the indictments of James Comey and Letitia James indictments seems uncomplicated. But legal doctrine does not always follow plain meaning or popular opinion. Let’s dig a little deeper.

Vindictive and selective doctrines have the same constitutional foundation and the same cautious application.

The legal doctrines that permit challenging a criminal prosecution as unlawfully selective or vindictive have at least three commonalities:

1. Neither is mentioned in the text of the Constitution, but both are firmly rooted in its amendments.
2. Both are rooted in concepts of fairness and equality.
3. Both are difficult to win with, yet they embody commonsense, and necessary, principles.

The body of the Constitution does not mention doctrines of selective or vindictive prosecution. This is unsurprising – the authors of the Constitution were focused on establishing a new form of government (three separated branches). As Chief Justice John Marshall (a prominent member of the founding Federalists) explained, the Framers’ intention was not to publish a “prolix[] legal code,” but rather to mark the new government’s “great outlines” and designate its “important objects.” However, the lack of attention to criminal justice in the Constitution was an immediate point of attack. Thus part of the 1789 ratification bargain was that a “bill of rights” would immediately be attached as amendments, and the First Congress proposed what became the Bill of Rights in 1791. Unsurprisingly, many of those rights addressed criminal law protections.

In the Fifth Amendment (inter alia) we see the constitutional foundation for guaranteeing fairness and equality in the application of liberty-depriving criminal laws: “[N]or shall any person … be deprived of life, liberty, or property, without due process of law.” The idea that a person may not be selected for prosecution unfairly, for improper reasons, is founded in constitutional due process. So too is the idea that a person may not be selected for prosecution purely as a matter of revenge – vindictive prosecution. In this sense, vindictive prosecution is simply a subset of improper selective prosecution.

Along these lines, U.S. attorney general and future Supreme Court Justice Robert Jackson explained in his essay “The Federal Prosecutor” that the use of governmental power to avenge perceived wrongs by harming the liberty of those out of power is fundamentally improper in a constitutional democracy. If you derive nothing else from this column, please read that paper (still found on the Department of justice’s website) in full here. When a prosecutor “acts from malice or other base motives, he is one of the worst” “forces in our society.” Thus selection of criminal cases for improper reasons is “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”

In 1886, in the famous Yick Wo decision, the Supreme Court recognized that the recently-enacted 14th Amendment also supports these legal doctrines. “No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The unanimous Yick Wo court found that amendment’s due process and equal protection clauses do not “leave room for the play and action of purely personal and arbitrary power.”

To be clear, “race and nationality” were the improper factors in Yick Wo. But the decision is replete with authoritative announcements against generalized abuses of government power: a “reign of just and equal laws” prohibits statutes neutral on their face from being applied “with an evil eye and an unequal hand,” and “imprisonment is illegal” on such bases. Yick Wo is thus recognized by many, including Justice Anthony Kennedy, as the “pathbreaking … equal protection case” underlying both the selective and vindictive prosecution doctrines.

The details: why each doctrine makes it difficult to prevail.

Just because such doctrines are recognized, however, does not make enforcement either easy or common, for several reasons.

All prosecutions are necessarily the product of selection.

Public prosecutors have limited time, money, and staff, and thus will always have to select what cases to bring. Jackson’s essay again succinctly explained the resource-limitations on universal prosecution which makes some case selection inevitable: “[N]o prosecutor can even investigate [let alone prosecute] all of the cases in which he receives complaints … [N]o local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.” As the court explained in 1962, “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.” It is instead a practical necessity – but only when based on proper factors.

The legal bar for proving violations is necessarily high, and even obtaining discovery is carefully limited.

Because some selection is necessary, prosecutors are granted (as the court explained in Wayte v. United States) broad – but “not unfettered” – discretion. We want to assume (note: what we want, not always what we get) that public prosecutors will generally apply their discretion fairly, without constant interference – a ‘’presumption of regularity” as Chief Justice William Rehnquist wrote in United States v. Armstrong. Thus, the Supreme Court has announced some pretty restrictive “rules” establishing “demanding” standards for evaluating selective and vindictive prosecution claims.

First, Yick Wo established that a defendant must show that “similarly situated” persons have not been prosecuted. This can require some careful parsing, and (like all legal concepts) is capable of lawyerly manipulation. Similarity is not perfect equality, and the court found the standard met for different Chinese launderers in Yick Wo.

Second, a “credible showing of different treatment” of the defendant from those similarly situated must be shown, and must be proved by some solid evidence, not just inference or intuition. Thus, for example, in United States v. Armstrong, the fact that all 24 defendants prosecuted in one district for cocaine possession were Black was not sufficient to gain discovery of internal government documents about those or other  investigations and prosecutive decisions, without something more. Armstrong has been strongly criticized, but it demonstrates the existing high standard.

Third, a defendant cannot even get discovery on where or who the unprosecuted differently-treated others might be, without first making the required “credible showing” of likely improper discrimination. Critics have noted that this can create a “Catch 22” situation, in which the evidence needed to prove the first two rules above is blocked by application of this one. Thus, as now-U.S. Court of Appeals Judge Stephanos Bibas noted in a 2009 article, “[t]he last successful claim of racially selective prosecution appears to have been Yick Wo.”

Finally, proving a violation of these legal doctrines depends on proving an improper motive or purpose on the part of the prosecutor – and such mental states (or in lawyerly terms, mens rea), being entirely internal, are notoriously difficult to show. Particularly when a defendant appears to be factually guilty of a charged crime, courts are unwilling to also find an unlawful motive in the prosecutorial mind; “but he’s guilty” can be a powerful rejoinder. Nevertheless, the court has repeatedly and unanimously concluded, in landmark cases like Morissette v. United States and civil contexts like the False Claims Act, that improper motives can be proved; and lower courts have found, albeit rarely, improper selective prosecutions. As the court itself noted in Armstrong, selective prosecution claims are not “impossible to prove.”   

(It seems important to note that in Yick Wo, the Supreme Court ordered that Yick Wo and Wo Lee be “discharge[d] … from custody and imprisonment.” Nevertheless, and without citing Yick Wo, a footnote in Armstrong suggested that the remedy for unconstitutional selection might not necessary be dismissal of the charges. This has recently been debated by Professor Guy Rubenstein. But that debate is not my focus here.)

Prosecutorial vindictiveness is a recognized constitutional evil.

When implementing these doctrines, unlawful reasons for prosecution include race, religion, or one’s exercise of free speech. Or as the court put it in Wayte v. United States (quoting a prior case), “the decision to prosecute may not be ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,’ including the exercise of protected statutory and constitutional rights.”

Over 50 years ago, the Supreme Court recognized another unlawful reason for prosecution selection, which, as I’ve expressed above, is especially relevant at the current moment: vindictiveness. In the 1969 case of North Carolina v. Pearce, Justice Potter Stewart explained that “vindictiveness against a defendant … must play no part” in sentencing after a successful appeal. Only a few years later, in Blackledge v. Perry, the court extended this rule to the prosecutor’s charging decision. And because a “fear of vindictiveness” may chill a person’s decision to exercise his rights, the court developed a rebuttable “presumption of vindictiveness” when a prosecutor’s decision appears more harsh than it would have been absent exercise of that right – that is, when specific criminal prosecution circumstances raise a “reasonable likelihood of vindictiveness.”

Scholars have noted that the concept of “vindictiveness” and the vague rules mentioned here present slippery tools with little further Supreme Court development. But the theory strikes a commonsense chord, and the limiting rules do too. Judicial caution in applying the doctrines is appropriate, and it requires judicial courage (and care) to declare a prosecutor’s motives constitutionally improper. In the end, “actual vindictiveness” is required and cannot be presumed. But over many years, the Department of Justice has itself developed “principles of prosecution” to (one hopes) prevent these constitutional dangers. They prohibit the influence of “political association, activities, or beliefs” or “the attorney’s own personal feelings” or “professional … circumstances” in deciding to charge someone. And they direct that federal prosecutors “may never make a decision regarding an investigation or prosecution … for the purpose of giving an advantage … to any … political party.” (It is presumably these principles which underlay the resistance of career prosecutors to the charges against Comey and James.)

In sum, a criminal law doctrine of vindictive prosecution, applied in a way that “closely reflects what we ordinarily mean by vindictiveness” and what longstanding precedents and principles have said, is consistent with – indeed, demanded by – the due process foundations of fairness and equality embedded in the Constitution and century-old precedent.

The bottom line.

The nuances and correctness of the doctrines of selective and vindictive prosecution will continue to be mined by judges, whether or not in the cases of Comey and James. And the imprecision of relevant Supreme Court precedents, combined with the unprecedented nature of Trump’s actions, may well compel the Supreme Court to revisit these, along with so many other, accepted doctrines. That said, certain facts appear clear in Comey and James’ circumstances: As others have noted, Trump’s own statements – indeed, his social media urgings to his attorney general – appear to provide the “smoking gun” (surely a “credible showing”) of improper motive that some doctrinal critics have said is so difficult to find.

Ultimately, as Hamilton explained in Federalist Paper No. 84, “whatever fine declarations may be inserted in any constitution … must altogether depend on public opinion, and on the general spirit of the people and of the government.” This is, at bottom, “the only solid basis of all our rights.” Thus, it is ultimately for the public, as well as judges, to unhesitatingly embrace the longstanding principle that the use of governmental power for prosecutorial vengeance cannot be constitutionally tolerated.