Legal analyst Steve Vladeck wrote Saturday in an opinion piece for MSNBC that a recent move by former President Donald Trump’s lawyers in his Mar-a-Lago classified documents case is “doomed to fail.”
In a new motion filed on Thursday to U.S. District Judge Aileen Cannon, who is overseeing the case and was appointed by the former president in 2020, Trump’s lawyers argue that a Chinese immigrant’s 1886 Supreme Court triumph provides “selective prosecution” precedent for throwing out Trump’s charges in the classified documents case.
Trump, the presumptive 2024 Republican presidential nominee, has pleaded not guilty to Department of Justice (DOJ) special counsel Jack Smith’s 40 charges where it’s alleged that he retained classified materials after he left the White House in January 2021 and then obstructed the federal attempt to retrieve them from his Mar-a-Lago resort residence in Palm Beach, Florida.
Trump’s team cites the Court case, Yick Wo v. Hopkins, involving “Lee Yick,” who was convicted for operating an unlicensed laundry in San Francisco. The immigrant sued and eventually won a landmark Supreme Court case that stated that Yick’s Equal Protection Clause of the Constitution’s 14th Amendment was being violated.
In the case’s decision, Justice Stanley Matthews wrote that even if a law’s wording appears fair, the Constitution bars the law if it is administered “with an evil eye and unequal hand, so as practically to make unjust and illegal discrimination.”
However, Vladeck contends in his opinion piece that Trump’s lawyers will struggle to convince Cannon that their client is comparable to Yick and his Supreme Court argument.
“Like claims about the unfairness of pretrial detention or the severity of the sentences in the Jan. 6 cases, there is a familiar — and perverse — irony at the bottom of Trump’s selective prosecution argument,” Vladeck, a University of Texas School of Law professor, wrote. “Maybe we ought to discuss limiting the circumstances, in general, in which pretrial defendants can be detained. Maybe we ought to discuss reforms to all federal criminal sentences. Maybe we ought to discuss making it easier for defendants to establish selective prosecution claims. But as the selective prosecution claim in the Mar-a-Lago case makes clear, Trump isn’t the poster child for these reforms; he’s the anti-poster-child. Indeed, he’s in the position he’s in entirely because his behavior went so far beyond the limits of that of any of his predecessors.”
He added: “That wasn’t true of Lee Yick, and that why Trump’s arguments that he’s just like Lee Yick are doomed to fail.”
Newsweek reached out to Trump lawyer Todd Blanche Saturday afternoon through his website. This story will be updated with any provided statements.
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The trial date in the classified documents case has yet to be finalized, but Cannon is expected to postpone it beyond its scheduled start date of May 20.
Vladeck also provided two “fatal problems” to Trump’s new motion, which was filed by Blanche and Chris Kise.
“First, for better or worse, the Supreme Court has made selective prosecution claims notoriously difficult to prove. Second, Trump is just about the worst possible person to bring a selective prosecution claim — since so much of his allegedly unlawful conduct in the Mar-a-Lago case is unprecedented,” Vladeck wrote in his opinion piece. “Only if the defendant could prove that the government had deliberately and intentionally singled him out from other similarly situated suspects without any good reason would such a claim succeed.”
In the motion to Cannon, Trump attorneys list current and former government officials, including President Joe Biden, Trump’s former Vice President Mike Pence and Trump’s former 2016 opponent in the presidential race, Hillary Clinton. They claim that Trump’s rivals have acted similarly to the former president in the Mar-a-Lago documents case, but “no one in the government lifted a finger” to their actions.
Robert Hur, the DOJ’s special counsel who investigated classified documents found at Biden’s home and former offices, said in February that the president cooperated with his probe, which were among several “material distinctions” compared to Trump’s documents case. Hur didn’t bring charges against Biden, but found evidence that Biden willfully held onto sensitive material after he left the vice presidency in 2017.
Trump’s lawyers outline that Pence was found to be holding onto classified documents at his home in Indiana yet was not indicted. The motion says that Pence made a number of disclosures to the National Archives and Records Administration [NARA] after leaving the White House.
They also pointed to Clinton’s use of a private email server for official messages when she was secretary of state under former President Barack Obama. The FBI did investigate Clinton and chose not to indict.
“For try as his brief might, it doesn’t identify any other cases with similar claims about affirmative misrepresentations concerning the suspect’s retention of classified information. Because there aren’t any,” Vladeck wrote. “Indeed, the reason Trump’s selective prosecution claim should fail is because of how much worse the conduct alleged in the Mar-a-Lago case is than that of the other officials his brief invokes as the relevant exemplars.”
He added: “In the court of public opinion, where facts don’t matter all that much, Trump and his supporters can wave their hands and make the cases look similar. But in a court of law, that’s not enough — and shouldn’t be enough.”
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.