"On Nicole's podcast today, I said that many of the criminal issues that will arise from Trump's politicization of DOJ won't be all that controversial at SCOTUS (and SCOTUS is least awful on criminal justice issues). But I said one area would likely break new ground: selective and vindictive prosecution. Jim Comey's prosecution - and that of everyone else Trump is pursuing - fits poorly in the existing precedents for selective and vindictive prosecution, even while they clearly are vindictive."
"And the Executive Branch has "exclusive authority and absolute discretion" to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678-679 (2023) ("Under Article II, the Executive Branch possesses authority to decide 'how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.'" (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021)))."
Many criminal issues arising from Trump's politicization of the Department of Justice will likely present limited controversy at the Supreme Court, which is comparatively restrained on criminal-justice matters. Selective and vindictive prosecution claims present a distinct challenge that could produce new doctrine at the Court. Prosecutions of figures like Jim Comey and other targets pursued by Trump fit poorly within existing selective and vindictive prosecution precedents even though they exhibit clear vindictiveness. Public commentary by Trump about active cases conflicts with language in Trump v. USA that risks assigning the President a prosecutorial role. Executive authority traditionally grants the Executive Branch exclusive discretion over investigative and prosecutorial priorities.
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