GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2026

Status

Forthcoming

Abstract

After taking office for the second time in January 2025, President Donald J. Trump repeatedly and openly called for then-U.S. Attorney General Pam Bondi and the Department of Justice, which she led, to investigate and prosecute Trump’s perceived enemies. At the same time, several of Trump’s current and former cabinet members, who allegedly had committed similar criminal acts, were not prosecuted (let alone investigated), raising concerns that the Department of Justice is not administering justice fairly.

Even though the prosecutor’s charging discretion is broad, it is not supposed to be unfettered. One way that prosecutorial charging discretion can be checked is through the doctrine of selective prosecution, which is derived from the Equal Protection Clause. Under this doctrine, prosecutors must not discriminate on the basis of an individual’s race, religion, exercise of a constitutional right, or some other arbitrary classification when deciding whether and whom to charge.

This aspirational doctrine, while rooted in the notion of equal protection, ends up helping very few defendants because of a judicially created rule called the presumption of regularity. The presumption of regularity requires courts to defer to prosecutors and assume that their charging decisions are made in good faith. Such deference can result in the denial of justice to defendants with legitimate cases of selective prosecution. This Article asks whether the presumption of regularity remains justifiable in the face of these extremely questionable prosecutions.

This Article brings to light this previously overlooked tension between the doctrine of selective prosecution and the presumption of regularity. The Article starts in Part I by explaining the historical origins of the doctrine of selective prosecution. It then discusses the presumption of regularity that underlies the doctrine before turning to a discussion of the elements of a selective prosecution claim. Throughout this discussion, the Article critiques the Supreme Court’s selective prosecution jurisprudence, highlighting ways in which the Court has made it virtually impossible for any defendant to succeed on a claim of selective prosecution. Claims of selective prosecution are so often unsuccessful that to remain viable, the doctrine of selective prosecution must be reformed. In response to this need, this Part suggests small ways the doctrinal elements of the doctrine could be improved.

In Part II, the Article turns to the present. It starts by pointing out that high-profile figures, including President Trump himself, have claimed selective prosecution when facing criminal charges. Part II uses former FBI Director James Comey’s claim of selective prosecution as an example of what a successful selective prosecution claim might look like, recognizing that the extraordinary circumstances and extensive legal resources available to Comey are not present in the typical case. Part II wraps up by discussing the current Administration’s continued use of the Department of Justice to target perceived enemies of the President.

In Part III, the Article offers a few novel ways to reform the doctrine of selective prosecution. It proposes that the presumption of regularity in the selective prosecution context be eliminated or significantly reformed. Part IV considers, and rejects, likely objections.

GW Paper Series

2026-49

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