DOJ Rolls Its Eyes At SPLC Claim of ‘Vindictive Prosecution’

The Department of Justice just sighed heavily for the record and told a court not to bother.

In a much-discussed bit of recent political theater, the Southern Poverty Law Center filed a long and dramatic brief alleging “vindictive prosecution” by Mean Orange Man’s supposedly politicized Department of Justice. Represented by nine lawyers, including elderly theater kid and Hunter Biden attorney Abbe Lowell, the SPLC demanded that their fraud prosecution for allegedly opening bank accounts and transferring money to informants in the name of fake businesses be dismissed. Their evidence that the SPLC can’t be prosecuted was that Donald Trump criticized them.

As The New York Times wrote, summarizing the argument, “the lawyers told Judge Emily C. Marks, a Trump appointee who is handling the case, how Mr. Trump, in a social media message shortly after the indictment was returned, had accused the center of being ‘one of the greatest political scams in American History’ and somehow connected the group’s work to his defeat in the 2020 election.” If Donald Trump calls you names, you can’t be charged with crimes. It’s a get-out-of-jail-free card.

In a brief filed on Friday, federal prosecutors argued plainly that “this Court need not concern itself with parsing the defendant’s allegations.”

In an example of professionals using lawyerly language to insult the other side, the DOJ wrote that the brief from the SPLC “employs a novel approach,” by which they mean that the SPLC’s giant legal team is putting on a show for the media that doesn’t mean anything as a legal argument: “Indeed, the defendant’s motion reads more like a press release or response to its critics rather than an attempt to identify the exercise of a recognized, specific legal right that, according to the defendant, led to the indictment.”

Going on, prosecutors write that they “sought an indictment in this case because, after law enforcement conducted a proper investigation, the Government believed the defendant committed federal financial crimes that could be proven beyond a reasonable doubt.”

Claims of vindictive prosecution are hard to win. As the lawyer and legal journalist Rory Little has written, “All prosecutions are necessarily the product of selection.” A defendant who claims vindictive prosecution is saying prosecutors decided to go after him, and that’s pretty much what prosecution tends to mean. Given that reality, Little writes, “The legal bar for proving violations is necessarily high, and even obtaining discovery is carefully limited.”

As the Texas A&M law professor William Byrnes told The Federalist several weeks ago, “fraud is fraud.” Maybe another administration wouldn’t have pursued the same charges on the same evidence, but “that doesn’t mean that the crimes aren’t being committed.”

Pointing to the potential for wider effects, prosecutors noted that a dismissal would establish the standard that no one could ever be prosecuted once they engaged in public political disagreement with an administration. If it works for the SPLC, they wrote, “any defendant could raise such an amorphous defense against a future criminal charge simply by publicly criticizing the prosecuting agency or the government generally,” after which the agency could be said to be prosecuting its enemies.

In the DOJ’s Friday brief, this passage appears on pg. 2:

Though Lowell and the SPLC’s other lawyers are speaking with the expected dramatic language about politics and meanness, the legal argument will be hard to win.

Finally, though, while the defense motion alleging vindictive prosecution was widely covered in the news, the government’s are-you-kidding-me response appears to have been entirely ignored. That should tell you something about the purpose of the argument.

Chris Bray is a senior correspondent at The Federalist and a former infantry sergeant in the U.S. Army. He has a history PhD from the University of California Los Angeles, not that it did him any good. He also posts on Substack, at “Tell Me How This Ends,” here.