Prosecutorial Discretion and the Indictment of Donald Trump

After many days of leaks from the grand jury and anxious speculation, the news broke last night that a Manhattan grand jury indicted Donald Trump.  The indictment remains sealed, and so we do not yet know the precise charges, but the many leaks from the grand jury indicate that the case revolves around payments to Stormy Daniels.

News of the indictment has sparked an outpouring of intense and diametrically different reactions.  On the left, people are delighted that Trump will face criminal charges; they think Trump has been engaged in years of criminal misconduct, and they see this as a moment of reckoning.  On the right, people are outraged by the charges, insisting that they are politically motivated and legally suspect.  Both of these reactions have something in common—they both touch, to some extent on the topic of prosecutorial discretion.  The delight from the left rests on the premise that law enforcement had for years looked the other way, and failed to hold Trump (like other powerful people) accountable.  The outrage on the right is based on the assumption that the Democratic Manhattan DA targeted Trump because he is a popular Republican politician.

I don’t want to wade into the merits and demerits of these opposing views.  Instead, I want to point out that, to the extent that they talk about prosecutorial discretion, both are likely correct.  People on the left are correct that powerful people often do not face consequences for acting illegally.  Prosecutors are loathe to bring charges against wealthy and powerful people because those people have the resources to fight back and because the prosecutor will look bad if the case falls apart.  Examples of such cases publicly falling apart abound—from Cy Vance’s failed prosecution of DSK, to Mike Nifong’s pursuit of the Duke Lacrosse team, and Marilyn Mosby’s repeated failed prosecutions of Baltimore police officers in the death of Freddie Gray.  Examples of prosecutors deciding that the hassle isn’t worth it are more difficult to come by because the public usually doesn’t find out about cases that aren’t brought.  But Alex Acosta’s decision not to bring any federal charges against Jeffrey Epstein gave us a rare public glimpse into that dynamic.

People on the right are correct that prosecutors often make decisions for political reasons.  The failed cases above were likely brought with the expectation that a successful prosecution would be helpful in the DA’s next election.  But even when local prosecutors aren’t thinking about their own political future, they will pursue cases to “send a message” to the public.  Thus, if you are a celebrity whose criminal conduct was very public, you may find yourself treated worse than the average defendant so that the prosecutor can appear tough on crime.  Just ask Martha Stewart and Plaxico Burress. 

As the above paragraphs explain, prosecutorial discretion—like all forms of discretion—inexorably leads to similarly situated people being treated differently.  Although equal treatment is the ideal, our legal system often relies on discretion because it is too difficult to specify ex ante what all of the relevant considerations ought to be.  This is one reason that the Supreme Court has given in stating that judicial review of prosecutors’ charging discretion is inappropriate. 

Because we cannot ensure equal treatment through ex ante rules, one might think that we could attempt to do so ex post.  This is what Jim Comey sought to do when he explained why criminal charges against Hillary Clinton were inappropriate.  He explained that DOJ had combed through the previous cases involving mishandling of classified information, identified the enforcement criteria that were used in those cases, confirmed that those criteria were not present in Clinton’s case, and thus determined charges were not warranted.  (If I recall correctly, the enforcement criteria were large quantities of material and/or dishonesty or obstruction on the part of the defendant.  Fun fact:  While neither of those criteria were present for Clinton, both are present in the Mar-a-Lago documents investigation against Trump.)

It might be possible to conduct the same sort of ex post inquiry in the Manhattan case against Trump.  The folks at Just Security have pulled together a document with a helpful spreadsheet of business records cases, which could allow readers to compare the Trump case to previous cases that have been pursued.  Unfortunately, documents like this are limited—they identify only cases that were pursued; they do not and cannot identify similar cases that the Manhattan DA’s office decided not to pursue.

Ultimately, that illustrates why modern prosecutorial discretion sits uneasily with our commitment to the principle of equal treatment under the law.  As a country, we have enacted broadly written criminal statutes, which delegate enormous enforcement authority to prosecutors.  And we have not created any mechanisms to provide transparency into how that authority is exercised.  We know that prosecutors routinely decline to bring charges when they have probable cause that a crime has been committed, and yet we do not know much of anything about how they use that power.

The indictment of a former president (and current candidate for the office) was always going to be a political firestorm.  But our failure to grapple with the black box of prosecutorial discretion only adds fuel to the fire.