Constitutionality of Trump ordering selective prosecution against his political enemies
Executive summary
A president who used the machinery of the Department of Justice to order prosecutions of political opponents would not stand beyond the Constitution: such conduct could violate the Fifth and Fourteenth Amendment guarantees against discriminatory enforcement and the Due Process Clause forbidding vindictive prosecution, but courts set a high bar and traditionally defer to prosecutorial discretion [1] [2]. Recent Supreme Court treatment of presidential immunity narrows some avenues of relief for official acts, but does not grant carte blanche to criminalize retaliatory uses of prosecutorial power [3] [4].
1. What the Constitution forbids and why it matters
The Constitution bars the executive from singling out individuals for prosecution on impermissible grounds—race, religion, or the exercise of protected rights—because such targeted enforcement undermines equal protection and basic notions of fairness embodied in the Due Process Clause [1] [5]. Historically the Court recognized discriminatory enforcement as unconstitutional as far back as Yick Wo, but modern doctrine requires defendants to show both selective treatment of similarly situated people and that the selection was motivated by an impermissible purpose—an evidentiary double hurdle that narrows successful claims [2] [5].
2. The practical legal hurdles to proving “selective” or “vindictive” prosecution
Even when a defendant alleges political motivation, courts typically defer to prosecutors because judges lack visibility into charging choices, and precedent establishes that some selectivity in enforcement is not itself unconstitutional [2]. To prevail a defendant must identify similarly situated unprosecuted comparators and prove discriminatory intent, and vindictive-prosecution claims require evidence that prosecutors acted in retaliation for constitutionally protected conduct—both are notoriously difficult to establish in practice [5] [1].
3. Presidential power and immunity: a limited shield, not a blanket license
The Supreme Court’s recent framework on presidential immunity recognizes absolute protection for acts within the President’s exclusive constitutional authority and presumptive protection for official acts in the outer perimeter of his responsibility, but it does not extinguish all accountability for actions that fall outside those categories [3] [4] [6]. That doctrine could complicate claims about a president ordering prosecutions if the act is framed as an official exercise of prosecutorial oversight, but immunity is neither unlimited nor an affirmative grant to weaponize federal criminal processes against political opponents [3] [4].
4. How courts would likely approach an allegation that Trump ordered selective prosecutions
Courts would require concrete proof that charging decisions were driven by unconstitutional motives rather than ordinary prosecutorial judgment, and they would examine whether the alleged ordering was an official act within presidential authority [5] [4]. If the conduct is characterized as purely retaliatory—aimed at punishing political speech or candidacy—that implicates protected rights and could meet the constitutional standard, but establishing that motive and identifying comparators who committed similar conduct and were spared is legally exacting [1] [5].
5. The political layer: claims as strategy and the risk of rhetorical overreach
Accusations of “selective prosecution” have become a potent political rallying cry and legal tactic, used on multiple sides to delegitimize prosecutions or deflect scrutiny; commentators and scholars warn this rhetoric can obscure the narrow, technical nature of the constitutional doctrines involved [7] [8] [9]. Observers on both ends warn of hidden agendas: a president may weaponize DOJ to chill opponents, while defendants may allege selection to avoid merits scrutiny—courts must sift motive from political spin [10].
6. Bottom line: constitutional prohibition plus a steep evidentiary climb
Ordering prosecutions against political enemies would likely run afoul of constitutional principles if done for impermissible, retaliatory reasons, but prevailing in court requires overcoming formidable doctrinal and evidentiary obstacles, and recent Supreme Court guidance on presidential immunity adds complexity without endorsing unfettered political prosecutions [1] [5] [3] [4]. Absent clear, documentary proof of discriminatory intent and viable comparators, courts are prone to uphold prosecutorial discretion even in politically charged contexts [2].