The DOJ’s arguments in Trump litigation ought to profit different defendants

Over the past year, the Department of Justice (DOJ), led by Attorney General William Barr, has made arguments on several cases that imply the conduct of President Donald Trump or his close advisers. In this article, we consider specific positions of the DOJ in cases involving Roger Stone, Michael Flynn, and the subpoenas issued by the New York District Attorney in connection with the Trump Organization investigation. In any event, the DOJ has taken positions that differ from the positions normally taken by DOJ prosecutors in normal law enforcement activities.

This has led to understandable criticism: Why should the DOJ treat President Trump or his advisors differently from other defendants? Equal justice under the law is the ultimate value of our legal system, and no one should be given preferential treatment for being friends with the president. For this reason, bar associations and former prosecutors have spoken out against these steps. Rather than insisting that the President’s staff be treated harsher, we offer this humble suggestion: Fix inequality by giving all defendants the same consideration given to Stone, Flynn and the Trump Organization. Defense attorneys should invoke the DOJ’s positions in these three cases and urge the courts to treat common defendants equally.