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In many recent high-profile white-collar criminal cases, a wide array of defendants (frequently allies of Donald Trump but also some well-known Democrats among them) have pursued a selective prosecution claim. These defendants typically argue they have been singled out while others who were engaged in virtually the same conduct have somehow escaped the government’s wrath. It is not a defense to the merits of the criminal charge itself, but instead an effort to turn the focus on the prosecution and its motivations. The claim is almost always doomed to defeat in court. This article explores the law on selective prosecution and why, despite the long odds against success, it may still make sense from a defense perspective to assert the claim.
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