Letitia James Highlights Eagle Ed Martin Just Before He Goes on a Conspiratorial Rant - emptywheel

"Vindictive and selective prosecution cases are always nearly impossible to win, because of how narrowly the precedent draws the analysis. To prove vindictive prosecution, the defendant has to prove that the prosecutor who made a charging decision harbored animus to the defendant. But of course, in Jim Comey and Letitia James' case, the playacting prosecutor, Lindsey Halligan, is just doing what her boss installed her to do."

"She didn't act out of animus towards Comey and James, except insofar as such animus is a litmus test for belonging in Trump's tribe (though her brief stint at the Smithsonian also exposed her as a dumb bigot, which could be relevant in James' case). She acted out a corrupt willingness to do anything her boss tells her to do. Here's how Lindsey's Loaner AUSAs argued that Comey had not met that standard in their response to his vindictive and selective prosecution motion."

"To start, the relevant analysis is whether the "prosecutor charging" the offense "harbored vindictive animus." Wilson, 262 F.3d at 316; see United States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995) (noting that the focus "is on the ultimate decision-maker"). Here, that prosecutor is the U.S. Attorney. Yet the defendant doesn't present any evidence that she harbors animus against him. Instead, he says that he doesn't need any such evidence because his claim "turns on the animus harbored by the official who prompted the prosecution.""

Vindictive and selective prosecution claims require proof that the ultimate charging prosecutor harbored vindictive animus toward the defendant. In the Comey and Letitia James matter, Lindsey Halligan is characterized as acting at her boss's direction rather than from personal animus. The government argues that the relevant decision-maker is the U.S. Attorney and that no evidence shows she harbors animus against the defendant. The defendant contends that animus of the official who prompted the prosecution, allegedly the President, suffices. The court must determine whether the President displaced the U.S. Attorney as the ultimate decision-maker before assessing alleged prosecutorial animus.

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