From Georgia to New York, 2024 could turn on the odor of selective prosecution

The removal of lead special prosecutor Nathan Wade from Donald Trump’s prosecution had the feel of a Southern Gothic.

Fulton County, Ga. District Attorney Fani Willis had described Wade as “a Southern gentleman. Me, not so much.” For weeks, the public has been enthralled by accounts of Wade’s illicit affair with Willis. Then there was the roughly three-quarters of a million dollars paid to Wade before he was booted from the case this week.

Channeling Tennessee Williams in his play “Cat on a Hot Tin Roof,” Judge Scott McAfee wrote that, after their testimony, there remained “an odor of mendacity.”

That odor was particularly strong after the hearings indicated that Wade may have committed perjury in his earlier divorce case, and that both Willis and Wade were credibly accused of lying on the stand about when their relationship began. 

They are prosecuting defendants in the Trump case accused of the same underlying conduct, including  19 individual counts of false statements, false filings or perjury.

Yet, that distinct odor noted by Judge McAfee goes beyond the sordid affairs of Willis and Wade.

For many citizens, mendacity, or dishonesty, is wafting from various courtrooms around the country. The odor is becoming intolerable for many Americans as selective prosecution is being raised in a wide array of cases.

The problem is that courts have made it virtually impossible to use this claim to dismiss counts. Yet there is a disturbing level of merit to some of these underlying objections.

For years, conservatives have objected that there is a two-tier system of justice in this country. I have long resisted such claims, but it has become increasingly difficult to deny the obvious as selective prosecution in a variety of recent cases and opinions.

I have long stated that the charges against Trump over documents at Mar-a-Lago are strong and based on established precedent. However, the recent decision of Special Counsel Robert Hur not to bring criminal charges against President Joe Biden has undermined even that case.

Hur described four decades of Biden serially violating laws governing classified documents. The evidence included Biden telling a third party that he had classified material in his house and actually reading from a classified document to his non-cleared ghostwriter. There is evidence of an effort to destroy evidence and later an effort of the White House to change the report. There is also Biden’s repeated denial of any knowledge or memory of the documents found in nine locations where he worked or lived. 

Hur ultimately had to justify the lack of charges based on a belief that he could not secure a conviction from a D.C. jury with an elderly defendant with diminished mental faculties.  

Although Special Counsel Jack Smith could still proceed on obstruction counts, his prosecution of Trump for the retention and mishandling of national security documents is absurdly in conflict with the treatment Biden is receiving.

In New York, the legislature changed the statute of limitations to allow Trump to be sued while New York Attorney General Letitia James effectively ran on a pledge of selectively prosecuting him. She never specified any particular crime, just promising to bag Trump.

Ultimately, James used a law in an unprecedented way to secure an absurd penalty of roughly half a billion dollars, even though no one lost a dime because of the Trump loans.

Manhattan District Attorney Alvin Bragg has also come up with an unprecedented way of using a state law to effectively prosecute Trump for a federal offense that the Justice Department has already rejected.

The same odor has been lingering in the Hunter Biden cases. The Justice Department had reached a ridiculous plea agreement with Hunter Biden that would have allowed for no jail time and a sweeping immunity agreement that would have protected him from all of his other alleged crimes.

As the plea agreement fell apart in court, the prosecutor admitted that he had never seen a defendant given such a deal over his long career. This came after the Justice Department had allowed the statute of limitations to run out on major felonies and scuttled efforts to conduct searches and interviews. Even after that embarrassing hearing, the Justice Department was still trying to preserve the agreement.

It is not just the Trump and Biden cases where there is a stench of selective prosecution. Consider a few other recent cases.

In California, U.S. District Court Judge Cormac J. Carney issued an opinion that found such evidence of selective prosecution against conservative groups. In considering a far-right group, Carney noted that the Justice Department has had sharply different approaches based on the political views of the defendants. Antifa and other leftist groups often see charges dropped, whereas federal prosecutors seek draconian sentences against conservative defendants.

“Such selective prosecution leaves the troubling impression that the government believes speech on the left more deserving of protection than speech on the right. 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,” Carney noted.

That treatment was equally glaring when federal prosecutors convicted an Antifa supporter who took an ax to the door of Sen. John Hoeven’s office in Fargo. He was given no jail time, and the FBI even returned his ax. 

He later mocked the government by posting on social media “Look what the FBI were kind enough to give back to me!”

Likewise, this week, former U.S. Attorney Rachael Rollins was disbarred after being found to have lied to investigators about leaking material to the press for political purposes. Rollins had allegedly made a clear and knowingly false statement to federal investigators, but the Justice Department just shrugged it off and refused to indict.

FBI Director James Comey received similar gentle treatment after removing FBI material and arranging for information to be leaked to the media. Meanwhile, defendants such as Trump’s National Security Adviser Michael Flynn were pursued relentlessly for making false statements to investigators under Comey’s watch.

These cases and others have fulfilled Trump’s narrative about a politically weaponized legal system. The fact is that many in cities like New York are thrilled by selective prosecution and biased sentencing decisions directed at locally unpopular figures.

The rest of us are left in courtrooms, from Georgia to Washington to New York, asking the same question of Tennessee Williams’ “Big Daddy” Pollitt: “What’s that smell in this room? …Didn’t you notice a powerful and obnoxious odor of mendacity in this room? There ain’t nothin’ more powerful than the odor of mendacity.”

Jonathan Turley is the J.B. and Maurice C. Shapiro professor of Public Interest Law at the George Washington University Law School.