When President Biden pardoned his son Hunter over the weekend, he did not say he was doing so just because he cared about his son. Rather, he repeatedly invoked the rationale that Hunter was “selectively prosecuted” – treated more harshly than other similarly situated individuals who violated the same gun laws. The very first sentence of President Biden's statement explaining the pardon raises the issue: “I said I would not interfere with the Justice Department’s decision-making, and I kept my word even as I have watched my son being selectively, and unfairly, prosecuted.” His statement also declares that Hunter Biden has faced “unrelenting attacks and selective prosecution.”

Selective prosecution is a violation of the equal protection component of the Due Process Clause, and results in the dismissal of a defendant’s case. So President Biden’s statement raises the question: If there is strong evidence that Hunter Biden was selectively prosecuted, why wasn’t his case dismissed, and why did he need a pardon?

As a former leader of the DOJ’s effort to prosecute participants in the January 6 Capitol attack, I routinely saw selective prosecution claims. Many January 6 defendants argued that they had been singled out for their political beliefs; that they were being treated more harshly than those who had rioted in the summer of 2020, or occupied government buildings calling for a cease-fire in Gaza, or disrupted Justice Kavanaugh’s confirmation, for example.  They usually claimed that their political affiliation was the reason for this allegedly disparate treatment.

Such claims, as of the date of this writing, have been uniformly rejected, with two district judges appointed by President Trump, Judge Trevor N. McFadden and Judge Carl J. Nichols, writing early opinions. A key reason these selective-prosecution motions failed was that January 6 defendants could not show that they had been treated differently than defendants in other contexts who were similarly situated – because the examples they chose did not involve defendants who were, in fact, similarly situated. 

For example, Judge McFadden found that salient differences between the 2020 Portland riot and the Capitol attack justified prosecutors’ actions, writing this vivid paragraph:

Although both Portland and January 6 rioters attacked federal buildings, the Portland defendants primarily attacked at night, meaning that they raged against a largely vacant courthouse.

In contrast, the January 6 rioters attacked the Capitol in broad daylight. And many entered it. Thousands of congressional staffers walked the Capitol's corridors that day. So did hundreds of legislators and the Vice President, all of whom appeared for a constitutionally mandated proceeding . . . their actions endangered hundreds of federal officials in the Capitol complex. Members of Congress cowered under chairs while staffers blockaded themselves in offices, fearing physical attacks from the rioters . . . The action in Portland, though destructive and ominous, caused no similar threat to civilians.

United States v. Judd, 579 F. Supp. 3d 1, 7–8 (D.D.C. 2021)

Hunter Biden, too, filed a motion to dismiss his criminal case for selective prosecution. United States v. Biden, 23-cr-61 (MN), Dkt. 63 (D. Del. filed Dec. 11, 2023). DOJ also argued that he had failed to support his claims that he had been treated more harshly than other similarly situated individuals. DOJ claimed that there was uniquely incriminating evidence against Biden, including his own statements in a 2021 memoir. DOJ also argued that he had not shown he was being prosecuted for an improper political purpose because he had not shown that any of his own political activity was the basis for the prosecution. Instead, he relied on the political affiliation of a family member (his father).

Selective prosecution claims are subject to a high bar: the defendant show by “clear evidence” that the prosecution had a “discriminatory effect” and was also motivated by a “discriminatory purpose.” Armstrong, 517 U.S. at 465 (Note: the D.C. Circuit recently held, in Frederick Douglass Found. v. District of Columbia, 82 F.4th 1122, 1143-44 (D.C. Cir. 2023), that First Amendment-based selective enforcement claims do not require a defendant to establish discriminatory intent, so January 6 defendants arguing they were targeted for their political beliefs need not show discriminatory intent. This has not, however, led courts to grant their motions because they continue to fail to show they are similarly situated to individuals not prosecuted). A defendant must show “some evidence of both discriminatory effect and discriminatory intent” even to obtain discovery in support of a selective-prosecution claim. See United States v. Bass, 536 U.S. 862, 863 (2002).

The court agreed with DOJ and denied Biden’s motion to dismiss for selective prosecution.  It observed that Biden “struggled” to identify a protected class of which he was a part.  Even if he had done so, as in the January 6 cases, the court found that he had failed to come forward with “clear evidence” that he had been treated differently than similarly situated individuals.  Statistics showing that Biden’s charges were relatively rarely bought, that many publicized cases involved arguably more aggravated facts, or generalized statements in the media about the types of scenarios where such charges were brought, did not suffice as “clear evidence” that similarly situated persons had not been prosecuted for the same offenses as Biden was. The judge also rejected Biden’s claims of discriminatory intent, noting, among other rationales, that the government’s interest in general deterrence – sending a message to other would-be wrongdoers in society—the strength of the evidence, and other “legitimate factors” supported the decision to prosecute. 

The point is this: selective prosecution, as defined in the law, requires a defendant to meet a high standard.  When “selective prosecution” accusations are lobbed in the public, there’s reason to be skeptical that a demonstrable constitutional violation has actually occurred. 

Nonetheless, the specter of “selective prosecution” is likely to rise again when President-Elect Trump decides whether to pardon those who committed crimes on January 6. Trump has already made the link between Hunter Biden and January 6 pardons, as has been reported.  As noted above, courts have roundly rejected January 6 defendants’ claims of selective prosecution. And should President Trump draw comparisons to Hunter Biden, a rudimentary analysis – of the type performed when addressing selective prosecution claims themselves – indicates several distinctions between the crimes committed by January 6 defendants and those committed by Hunter Biden. Moreover, issuing potentially hundreds of pardons, involving offenses mostly captured on video, would send a message of impunity on an entirely different scale. But the “selective prosecution” rhetoric will likely be deployed to try to shift the terms of the debate nonetheless.