Trump, Hunter Biden share unlikely gambit: Both say they're unfairly targeted

The details underlying former President Trump’s and Hunter Biden’s prosecutions may be worlds apart, but both men are turning to an unlikely gambit in bids to have their cases tossed: arguing the cases themselves amount to unfair targeting.

Trump is facing charges over efforts to remain in power after losing the 2020 election, while Biden has been accused of failing to acknowledge drug use when purchasing a firearm.

But in both the men say they have been selectively and vindictively prosecuted, asking judges to dismiss their cases.

To Trump, the claim rests at the heart of his defense both in court and on the campaign trail, that his prosecution represents an effort to stymy his prospects as he seeks reelection. 

To Biden, the gun charges brought after a previous plea deal evaporated show that special counsel David Weiss caved to pressure from House Republicans probing his ongoing investigation.

To lawyers, the move is a hail mary — one that courts are unlikely to bless.

Jeff Robbins, an attorney now in private practice who has served as both a federal prosecutor and a Senate investigative counsel, said defendants who file such a motion are fighting against longstanding practice giving prosecutors the power to determine who should face charges.

“The standard is you begin with the strong presumption that prosecutors are permitted discretion in choosing who to prosecute and who not to prosecute. So anybody raising this argument begins with that presumption and the need to somehow overcome that,” he said.

Biden’s legal team acknowledged the motion seldom succeeds, citing the difficulty of “prov[ing] what is in the mind of prosecutors,” but said publicity around the case offers evidence “on steroids” to back the claim.

“The announcement that this case would be resolved through a Diversion Agreement and a Plea Agreement drew a sharp rebuke from former President Trump (who appointed Mr. Weiss), extremist House Republicans, and the far-right media. They made it clear that they wanted Mr. Weiss to keep this litigation alive through the presidential election,” they wrote.

“Because the facts in the case did not change and the law only became more difficult for such prosecutions, the public record supports no conclusion other than Mr. Weiss changed his decision because he buckled under political pressure to bring more severe charges.”

Trump, who has made similar claims of prosecutorial bias in his other prosecutions, has filed the motion only in his election interference case, which has been brought to a halt while the court system weighs another bid from him to toss it, arguing he is immune from prosecution as a former president.

Biden has thus far only filed the motion in his Delaware gun case, doing so before authorities brought significant tax crimes charges against him in California. 

Selective and vindictive prosecution motions are slightly different, though both men have said each apply to their circumstances.

Selective prosecution usually encompasses those who say they have been unfairly targeted, an argument often made on the basis of race or religion as well as speech. 

“At a minimum, the burden on somebody raising that argument is going to be to show that there are extremely similar circumstances among two defendants or sets of defendants and the prosecution has pursued group A and not group B,” Robbins said.

Vindictive prosecutions require a different test from the courts.

“Vindictive prosecution requires essentially a showing that the government is retaliating against a defendant for exercising a constitutional right,” something that could include increasing the severity of the charges, saidMary McCord, a former top Justice Department official who now runs Georgetown’s Institute for Constitutional Advocacy and Protection.

That dynamic makes for a difficult argument for Trump, whose own prosecution lagged hundreds of others who were charged in connection with the Jan. 6 riot and who is not facing the insurrection charges brought against members of the Proud Boys and Oath Keepers.

In his motion, his team argues that his efforts to offer an alternative slate of electors should not result in charges because there is a “track record of similar, unprosecuted, efforts [that] dates back to 1800 and includes at least seven other elections.”

The charges are also vindictive, Trump’s team argues, because they are “a straightforward retaliatory response to President Trump’s decisions as Commander In Chief in 2020, his exercising his constitutional rights to free speech and to petition for the redress of grievances, and his decision to run for political office.”  

While Robbins said you “virtually never” see such motions be successful, he pointed to one recent case where defendants scored an initial win.

Anti-abortion activists who protested alongside Black Lives Matter protesters in Washington following the death of George Floyd in 2020 challenged their charges for defacement of public property after scrawling their viewpoints in sidewalk chalk.

“The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others. During the summer of 2020, the

District arrested individuals chalking ‘Black Pre-Born Lives Matter’ on the sidewalk, while making no arrests against the many individuals marking ‘Black Lives Matter’ on sidewalks, streets, and other property,” the D.C. Circuit Court of Appeals court ruled earlier this summer.

“The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance,” they added, referring to the Frederick Douglass Foundation and Students for Life of America, which organized the anti-abortion protest. 

But success of such motions typically kicks off more review, including the exchange of discovery to further vet the claim.

McCord said that may not be a favorable outcome for the former president’s selective prosecution motion.

“For Trump, that doesn't really work because there is no one who is really similarly situated to him. The closest would be those that I don't think he wants to be compared to: the Jan. 6 defendants,” she said. 

In Biden’s case, prosecutors have yet to respond, and it’s unclear if the president’s son will make similar arguments in his pending tax case. 

But in Trump’s, prosecutors have vigorously denied he was improperly targeted, arguing that the former president has failed to provide evidence the prosecution is an effort to hinder his electoral prospects, writing the “incumbent president has no role in this case, and the career prosecutors handling this matter would not participate in this prosecution if it were otherwise.”

They mocked Trump’s team for turning to “historical episodes dating back to the time of Thomas Jefferson” to make their case and argued that “none of the historical examples the defendant points to involved deceitful and corrupt efforts to defeat a government function.”

“Despite his search through history,” prosecutors wrote, “the defendant has not identified a ‘similarly situated’ person.”