Author ORCID Identifier

Jonathan Nash 0000-0001-5816-6896

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Discriminatory prosecution, Criminal prosecution, Constitutional violation, Political motivation, Racial motivation


There is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on promises to lock up Hillary Clinton for her handling of State Department-related emails, but he subsequently complained that the special counsel's investigation of his campaign's alleged contacts with Russian operatives was a politically motivated witch hunt. Kenneth Starr's pursuit of investigations of Bill Clinton evoked similar arguments of political motivation.

The advent of "progressive" prosecutors will no doubt increase claims of bad faith prosecution, given their announcements of crimes they will and will not prosecute. Typically, they promise not to prosecute for lesser violations such as prostitution and drug possession. Although crime victims generally cannot complain that a perpetrator was not prosecuted, non-prosecution policies could strengthen claims of bad faith prosecution when prosecutors nevertheless prosecute some individuals for such delicts. In addition, candidates' and officials' statements that they intend to pursue certain individuals or groups may bolster claims of bad faith as evidenced in Donald Trump's arguments of political motivation for investigations by New York Attorney General Letitia James.

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Publication Title

Virginia Law Review