How Attorneys May Attack Future Mueller Prosecutions

“Rarely do media reports focus on the political leanings of prosecutors, investigators, or witnesses. It is, however, often a highly relevant consideration in cases where selective prosecution claims are made.”

In the wake of the release of politically charged internal communications, Republicans, Democrats, and their media adherents have engaged in an all-too-familiar, routinely surface level tug-of-war over allegations of political bias connected with the Mueller-Russia-Trump investigation. As these discordant factions posit painfully perfunctory platitudes, a legal scholar has identified a vital concern. It is one that could be critical to the ultimate viability of future envisioned and emergent prosecutions. Not surprisingly, this consideration has been virtually ignored in the ponderous, predictably parochial, partisan posturing.

Professor Ron Carlson, Fuller E. Callaway Chair of Law Emeritus at the University of Georgia School of Law, a nationally recognized expert on the laws of evidence, trial practice, and criminal procedure, observes, “Currently, the focus appears to be on debating whether political bias exists. Very little attention has been paid to what could become far more impactful. That is, if demonstrated, how political bias could affect subsequent proceedings.”

What Carlson is talking about is a developing area of criminal law: the defense of political bias. Criminal defendants are entitled to impartial prosecutions. Accordingly, where charges emanate from political preconception as opposed to a neutral and detached application of the facts and law, Carlson notes that a host of normally unavailable vistas may, in compelling cases, become viable options to aggrieved criminal defendants. These may include but are not limited to: discovery into internal communications of investigators and prosecutors; occasional disqualification of prosecutor offices; reassignment of the case to different prosecutors or offices; reversal of convictions; and dismissal of charges.