In the past year, we have seen the Department of Justice (DOJ), under the direction of Attorney General William Barr, present arguments in several cases that implicate the conduct of either President Donald Trump or his close advisors. In this article, we consider certain positions taken by DOJ in cases involving Roger Stone, Michael Flynn and the subpoenas duces tecum issued by the New York District Attorney’s Office in connection with its investigation into the Trump Organization. In each instance, DOJ has taken positions that diverge from the positions usually taken by DOJ prosecutors in ordinary criminal prosecutions.
This has led to understandable criticism: Why should DOJ treat President Trump or his advisors differently than other defendants are treated? Equal justice under law is the highest value of our legal system, and no one should receive preferential treatment because they are friends with the president. This is why bar associations and former prosecutors have spoken out against these steps. Rather than insist that the president’s associates be treated more harshly, we offer this modest proposal: Remedy the unequal treatment by affording to all criminal defendants the same consideration accorded to Stone, Flynn and the Trump Organization. Defense lawyers should cite to DOJ’s positions in these three cases and ask courts to give ordinary defendants the same treatment.
