Barbara McQuade

One of the most famous cases of selective prosecution involved charges against operators of laundry services in San Francisco in wooden shops.

So after the Great Fire in San Francisco, there was a prohibition on running laundry services in wooden buildings because of the danger of fire.

But it turned out that the prosecutions were only brought against Chinese owners of laundry services in wooden buildings and not white operators.

And so they successfully brought a claim of selective prosecution.

You're only going after one race of people in prosecuting this case.

It's difficult to prove this claim, however, because it requires a couple of things.

One is showing that others similarly situated were not charged with crimes.

In the case of the laundry services, it was easy to do that because they could just line up and say, look, here are all the Chinese owners.

Here are all the non-Chinese owners.

These were charged.

These weren't charged.

In a case like Jim Comey's, it's hard to prove the negative that somebody else did make a false statement before Congress but wasn't charged.

But what's easy to prove in this case is the second element.

That is an intent to discriminate on some improper purpose.

And in addition to race or religion, a political motive is an arbitrary and prohibited basis.

And so here is where Trump's messages could be very valuable to the defense team because you'd have to show an intent to treat someone differently on the basis of politics.

So all these things about Comey's a scumball or a slimeball or whatever the words that Trump has used, I think those could be strong evidence for that other element of intent.

Well, there are a couple of things.

One is we teach them the norms, right?

We teach them the rules of ethics.