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Friday, March 31, 2023

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.

Posted by Carissa Byrne Hessick on March 31, 2023 at 09:39 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink


As noted in a separate post, this litigation will have a lot of crowdsourcing.

You will have various concerns about "overprosecution" and so forth. Others will take a more positive approach. See, e.g., Prof. Leah Litman on the Strict Scrutiny Podcast (crossover episode) and pieces like this:


We don't have all the facts yet. And, by the time the trial (if it ever comes; like many indictments, a trial very well may never come), we probably will have a whole lot else to be concerned about.

"No matter how you look at it, the Trump prosecution will leave an indelible stain on American justice, Allen said"

I don't know about that. Him continuously being above the law surely has.

Posted by: Joe | Apr 11, 2023 2:35:52 PM

It is important to note that if you believe that “Laws exist to ensure our rights against abuses by other persons, organizations, and by the government itself”, and to “provide for our general safety”, and you respect “The Rule Of Law”, when it serves to “provide for the National Defense”, and to “secure the Blessings Of Liberty to ourselves and our posterity, (as in our beloved sons and daughters not yet born), than you can know through both Faith and Reason that is rightly ordered, that any prosecutorial discretion that does not serve to uphold the Spirit Of The Constitution, can only be viewed to be due to ignorance of the Law or political malpractice due to malfeasance.
First principles matter; you cannot charge someone with an “intent to commit another crime and aid and conceal the commission thereof”, if you, the prosecutor, deny the initial crime is, in fact, a crime.



Posted by: N.D. | Apr 11, 2023 11:55:58 AM

UPDATE - A Prosecutor With Courtroom Experience And Me

Manhattan Prosecutor ‘Overcharged’ Trump, ‘Weak’ Case Could Backfire With Jury: Legal Analysts

Banzhaf, ironically, was the attorney who filed a complaint against Trump in Georgia, leading to an investigation there for alleged interference in the 2020 presidential election.
Interplay With Other Cases

That investigation is still ongoing, and Banzhaf thinks the New York case could have an adverse effect on the Georgia case.

Mike Allen, a former judge and prosecutor in Ohio, said the New York case might not even make it to trial.

“I think there’s a very good chance” that Trump’s team will prevail on a motion to dismiss, “which will be filed post-haste,” Allen told The Epoch Times.

Allen also thinks the case, on its face, seems “weak,” because it’s “a mishmash” of statutes—the combining of state falsification-of-records charges with federal campaign finance violations.

Allen and Banzhaf both said the case could be dismissed because it’s based upon an untested legal theory.

In addition, Banzhaf said Trump’s team will likely argue that a time limit for prosecuting the case has run out.

Trump’s attorneys also may argue that Bragg has engaged in “selective prosecution.” Bragg elevated Trump’s misdemeanor allegations to felonies while he routinely has done the reverse with other criminal defendants, smacking of unequal treatment under the law, Banzhaf said.

“If the indictment is dismissed on any grounds … I think it would have a very serious adverse impact” on the Georgia case and other investigations Trump is now facing, Banzhaf said.

No matter how you look at it, the Trump prosecution will leave an indelible stain on American justice, Allen said

Posted by: LawProf John Banzhaf | Apr 4, 2023 9:02:23 PM

One may read the indictment (Grand Jury) hereby in "Hill" (locked within the article itself. One may download it there, to the personal system):


Posted by: El roam | Apr 4, 2023 4:56:19 PM


“Both of these reactions have something in common—they both touch, to some extent on the topic of prosecutorial discretion.”

True, “both reactions touch, to some extent on the topic of prosecutorial discretion”, while failing to recognize that regardless of the actors, or the actor’s desires, two adults consenting to a demeaning sexual act of any nature, does not change the demeaning nature of the act. Regardless of desire, you cannot engage in demeaning sexual acts of any nature while claiming to be respecting the inherent Dignity of the persons engaging in the demeaning sexual acts. In essence, both reactions fail to uphold respect for the inherent Dignity of the human person, one party by claiming demeaning sexual acts are not, in essence, demeaning, but become criminal when money is exchanged to silence one of the parties who ”contracted” to engage in the demeaning sexual acts, the other party, by claiming that consenting to engage in demeaning sexual acts, changes the nature of the demeaning act, and in this case, there needs to be evidence that money was exchanged to silence one of the parties who had “contracted” to engage in demeaning sexual acts, by the other party, in order to charge one of the parties with a criminal act. To a degree, all demeaning sexual acts are cut from the same cloth, one that denies the inherent Dignity of every beloved son and daughter.

Thank you, Carissa, for your legal work to protect our beloved sons and daughters from the heinous crime of child pornography, I will keep you in my thoughts and Prayers.

Posted by: N.D. | Apr 2, 2023 9:28:59 AM

Thank you for your prompt response.


I wrote quite truthfully that I was not familiar with CBHessick since it was just one of many - e.g. “Joe,” “N.D.” “ kotodama,” - names used by others who posted comments to the same piece, and I had not previously run across your name in my daily review of many different news outlets,

Indeed, when I did look briefly at Google News to see if you were responsible for any significant changes in the law or had otherwise actually helped people, I unfortunately did not find anything which would have brought your name to my attention.

Since you raised the issue, I have now looked at your official bio. While I am very impressed by the various titles you hold and by your significant scholarly writings, I still did not read about any changes you have brought about in the law or in society which would have brought you to my attention previously.

Please do not take my statement that “I’m not familiar with CBHessick” as an insult. I am also not familiar with the names of the great majority of law professors unless they have done something especially newsworthy.


You originally stated that I had said that “Trump IS LIKELY to have the charges dismissed.”

I corrected you by pointing out that “I simply mentioned the arguments Trump’s lawyers are likely to make, which are the same being discussed on CNN and on other media outlets.” Nothing more.

You now claim that I “suggest[ed] that there is a credible possibility that these charges would be dismissed for selective prosecution.”

But in simply noting that such a claim would likely be made, I said exactly the same thing that many different experts featured on various news programs and well as in many newspapers - many of whom seem to have more actual relevant experience (e.g., as federal prosecutors) than you do - also pointed out.

I think it is also fair to note that you did not cite any real-world experience you may have had (e.g. as a federal prosecutor or in defending the accused in NYC federal courts as some of these experts had) which would lead you to question what I an all these other experts have explained.


Finally, you state that “I don’t think your scholarship or expertise lies in the area of prosecutorial discretion and the criminal justice system.”

But my expertise as well as experience in the real world of criminal justice - and not simply in scholarly articles about it - includes, for example:
* helping to obtain special prosecutors for then-president Richard Nixon
* filing the criminal complaint which triggered the current investigation of Trump in Georgia
* providing the successful legal justification for the NYC’s “subway shooter”
* correctly and publicly predicting the outcome of many major criminal cases

Expertise and scholarship is not found only (or even primarily) in law review articles.

“Indeed, as I have noted in the Washington Post, New York Times, and other publications, those who think that legal scholarship can only appear in published articles may well be called ‘myopic legal eunuchs,’” https://bit.ly/3G9qNVw

Posted by: LawProf John Banzhaf | Apr 2, 2023 1:24:27 AM

More for Prof Banzaf—
If you are reading a post by Carissa Byrne Hessick on Prawfs, then you have at least some familiarity with CBHessick. We are the same person. And links to my scholarship and faculty webpage are provided on the side bar. I
As for the question of Trump’s lawyers filing a motion for selective prosecution to have the indictment dismissed, I can’t speak to the quality of the legal commentators on CNN. Some of them do not seem particularly good.
As for the commentary that you provided to the Epoch Times, I don’t think you have done their readers any favors by suggesting that there is a credible possibility that these charges would be dismissed for selective prosecution. If you think such an outcome is not likely, then perhaps you should reread your comments to determine whether that is the impression that they create.
More generally, my comment about not being familiar with you and your work was an oblique reference to the fact that I don’t think your scholarship or expertise lies in the area of prosecutorial discretion and the criminal justice system. But please correct me if I’m wrong.

Posted by: CBHessick | Apr 1, 2023 3:29:55 PM

CBHessick writes: “I'm not familiar with LawProf John Banzhaf. But to the extent he is telling media outlets that Trump is likely to have these charges dismissed on a theory of selective prosecution, I'd be curious to know what cases or other authority he relies on for that conclusion.”

I’m not familiar with CBHessick, but I did not say that “Trump IS LIKELY to have the charges dismissed” on any of the theories mentioned. Rather, I simply mentioned the arguments Trump’s lawyers are likely to make, which are the same being discussed on CNN and on other media outlets.

I did say that, for reasons which I spelled out in several different articles, the Manhattan case is probably the weakest of the four possible indictments, and that the one where I filed the criminal complaint(in Georgia)is probably the most likely to lead to a conviction.

Posted by: LawProf John Banzhaf | Apr 1, 2023 2:44:51 PM

"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."

If there was no discretion, but some overall rule was in place, would "the right' and "the left" be in different places? I doubt it.

The right concern for "political" choices as I basically noted is selective. ("Lock her up!") In fact, if there was some sort of delegation to a neutral body here, outside of the control of President Biden, would not the logic of their ideological priors deem it a violation of the unitary executive?

Trump is also not an ideal example of the black box principle. The amount of oversight (legislative, executive, judicial) so far is much more than normal. There will be even more, including if he is actually prosecuted in N.Y. and it is appealed. This includes non-governmental bodies such as media analysis. The sort of "deep dive" efforts are not done for a typical prosecution.

I think the presidential immunity issue is more compelling. If someone else committed these crimes, they very well might have been prosecuted years ago. New York politicians can tell you about that.

Yes, Trump for around 50 years now shown how discretion exists and threatens equal justice under the law. Still.

Posted by: Joe | Apr 1, 2023 12:34:57 PM

It is ironic, don’t you think, that behavior that is not consistent with being a Good Officer and a Gentleman, in a Time in Salvational History, when the denial of the inherent Dignity of the human person as a beloved son or daughter from the moment of conception to natural death and the denial of the inherent Dignity of the essence of being in essence a beloved son or daughter, brother or sister, husband or wife, father or mother, is protected by Law, that some of the very people who fought to overturn that which serves to protect the inherent Dignity of all beloved sons and daughters are feigning outrage about conduct that is certainly not what we would expect or desire for The Office Of The Presidency, or for any of our beloved for that matter. I guess that is politics for you.

Posted by: N.D. | Apr 1, 2023 9:13:02 AM

"This is what Jim Comey sought to do"

You seriously believe that? Have you also been sitting around these days waiting for the Easter Bunny to show up?

Posted by: kotodama | Mar 31, 2023 7:58:39 PM

I'm not familiar with LawProf John Banzhaf. But to the extent he is telling media outlets that Trump is likely to have these charges dismissed on a theory of selective prosecution, I'd be curious to know what cases or other authority he relies on for that conclusion.

Posted by: CBHessick | Mar 31, 2023 6:59:17 PM

When WASN'T the choice of who to prosecute somehow in various cases a "political" act? Also, there was always discretion. Some laws were quite underenforced. Morals laws, for instance, were rarely enforced.

I realize the complexities here. I want to underline that. But, "modern" caught my eye. I wonder how much change actually happened in various ways.

The author of the OP wrote about this elsewhere, surely, but just saying.

Posted by: Joe | Mar 31, 2023 6:39:06 PM

Here are more opinions from THE EPOCH TIMES

Trump Is Indicted: Here’s What Happens to Him Next in Court
Law Professor Reveals What Trump's Lawyers Could Initially Do to Fight the Indictment

And my opinions - as the lawyer whose complaint triggered the Georgia criminal complaint against Trump - as quoted in the article:

John Banzhaf, a law professor at George Washington University, said that Trump’s lawyers could file a motion to dismiss the case on multiple legal grounds, likely arguing that it is based on a faulty legal theory that a misrepresentation of an alleged hush-money payment is not by itself a criminal act. They also likely will argue that charges against him—stemming from payments that were made in 2016—are barred by the statutes of limitations.

“Third, and perhaps most importantly, his lawyers will seek a dismissal based upon the argument of prosecutorial misconduct, and especially selective prosecution,”

“In support they would point to the undisputed facts that several prosecutors (including Bragg himself once) who had reviewed the case declined to prosecute, and that there is no logical reason (e.g. newly discovered evidence) to suddenly reinvigorate what has been called a ‘zombie’ case now years after the facts became known.”

The former president also could argue that “selective enforcement” could be at play, which is when a district attorney or other prosecutors attempt to single out an individual for charges “when they generally choose not to charge other people who committed similar offenses,”

Posted by: LawProf John Banzhaf | Mar 31, 2023 3:51:01 PM

Just link to:

Mcnally v. US


Posted by: El roam | Mar 31, 2023 2:28:37 PM

Great post. Surely these days.

Some interesting and relevant citations from rulings:

Upon the same expected or alleged charges (as in the case of Trump) I quote from the dissenting ( Justice Stevens, in Mcnally v. US):

"The possibilities that the decision's impact will be mitigated do not moderate my conviction that the Court has made a serious mistake. Nor do they
erase my lingering questions about why a Court that has not been particularly receptive to the rights of criminal defendants in recent years has acted so dramatically to protect the elite class of powerful individuals who will benefit from this decision."

And from Heckler (linked in the post) concerning the "black box" mentioned (showing by that, that courts also, do not tend to intervene in such prosecutorial discretion, especially when it has to do with avoiding action, differentiated from taking positive action). Here:

"Refusals to take enforcement steps generally involve precisely the opposite situation, and in that situation we think the presumption is that judicial review is not available. This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether
through civil or criminal process, is a decision generally committed to an agency's absolute discretion. See UnitedStates v. Batchelder,442 U. S. 114, 123-124 (1979); UnitedStates v. Nixon, 418 U. S. 683, 693 (1974); Vaca v. Sipes, 386 U. S. 171, 182 (1967); ConfiscationCases, 7 Wall. 454 (1869). This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement. The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables in volved in the proper ordering of its priorities. Similar concerns animate the principles of administrative law that courts generally will defer to an agency's construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute. See Vermont Yankee NuclearPowerCorp. v. NaturalResources Defense Council, Inc., 435 U. S. 519, 543 (1978); Train v. NaturalResources Defense Council, Inc., 421 U. S. 60, 87 (1975). In addition to these administrative concerns, we note that when an agency refuses to act it generally does not exercise its coercive power over an individual's liberty or property rights, and thus does not infringe upon areas that courts
often are called upon to protect. Similarly, when an agency does act to enforce, that action itself provides a focus forjudicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory
powers. See, e. g., FTC v. Klesner, 280 U. S. 19 (1929). Finally, we recognize that an agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict-a decision which has long been regarded as the special
province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to "take Care that the Laws be faithfully executed." U. S. Const., Art. II, §3"


Posted by: El roam | Mar 31, 2023 2:26:08 PM

Do you think it is more accurate to state, it is intent that “adds more fuel to the fire”, and if there is no evidence to demonstrate intent, then one can assume that the motive for the indictment, in this case, would be political?

Posted by: N.D. | Mar 31, 2023 12:09:50 PM

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