Could Donald Trump Sue for Malicious Prosecution?

As Donald Trump faces various criminal investigations and potential charges, he has accused prosecutors of targeting him unfairly due to political animus. This raises questions about whether Trump could sue for malicious prosecution if cases are brought against him.

Malicious prosecution lawsuits allow civil damages against parties who initiate unsuccessful criminal cases with deliberate malice or ill intent. But the high bar for proving improper motives by prosecutors makes succeeding in such claims extremely difficult.

The Malicious Prosecution Framework

Malicious prosecution laws vary somewhat between states but generally follow similar principles requiring a plaintiff to prove [1]:

• A criminal case was initiated with malice or wrongful intent by the defendant.
• The charges were not supported by probable cause.
• The criminal prosecution ended conclusively in favor of the plaintiff.
• Actual damages resulted, such as financial harm or reputational injury.

Meeting these conditions is challenging, especially when the defendant is a public prosecutor with broad discretion.

Trump’s Basis for Claiming Malicious Prosecution

Trump argues various criminal probes against him violate fair process and impartiality standards:

• He claims the New York investigations are a “witch hunt” pursued solely to damage him politically [2].
• Trump alleges the FBI search of Mar-a-Lago represents an abusive overreach driven by partisan animus [3].
• He asserts prosecutors exaggerated minor discrepancies in his family business records into crimes [4].
• Trump says other prominent figures committed equivalent acts without being charged criminally [5].

These accusations lay the foundations for potential future malicious prosecution allegations if Trump faces any criminal liability in these matters.

Barriers to Suing Prosecutors for Malicious Prosecution

Several realities make succeeding in malicious prosecution cases against prosecutors extremely hard [6]:

• Prosecutors have absolute legal immunity for actions within the scope of their duties.
• Judges presiding over criminal cases against Trump would have already deemed charges sufficiently justified.
• Proving concrete financial damages directly tied to prosecution would be difficult with Trump’s diversified assets.
• Malice is hard to establish definitively based on prosecutorial discretion and legitimate disagreement on interpreting facts.

Overcoming these realities represents a major hurdle for Trump.

Prior Unsuccessful Suits Against Prosecutors

History shows such lawsuits rarely succeed, even with seemingly stronger cases than Trump:

• After his OJ Simpson murder trial acquittal, OJ Simpson sued for $20 million accusing prosecutors of malicious prosecution but lost the case [7].
• Dallas Cowboys owner Jerry Jones also unsuccessfully sued prosecutors for years after his acquittal on sham charges [8].

If these more clear-cut cases failed, Trump likely faces an even tougher burden trying to litigate prosecutorial bad faith.

Scenarios Where a Malicious Prosecution Suit is More Likely

A malicious prosecution lawsuit would become more plausible if Trump faced extreme scenarios like:

• Indictment by local prosecutors for charges within federal jurisdiction only.
• Prosecution for ordinances ruled unconstitutional years earlier.
• Fabricated evidence or planted contraband used to target Trump.

However, these remain highly improbable hypotheticals absent extraordinary revelations of gross prosecutorial misconduct.

What a Successful Malicious Prosecution Claim Would Require

For Trump to realistically win malicious prosecution damages, he likely would need:

• Irrefutable evidence of prosecutorial frame-ups and fabrication of false charges.
• Testimony by cooperating conspirators within prosecutors’ offices admitting illicit targeting.
• Leaked documents unambiguously proving anti-Trump animus was the sole factor behind prosecutions.
• Multi-million dollar business losses directly attributable to his criminal indictment.

The bar is extremely high, and such smoking gun proof of overt prosecutorial corruption and overreach cannot be presumed.

Conclusion

While Donald Trump frequently decries political witch hunts against him, succeeding in a malicious prosecution lawsuit requires overcoming almost insurmountable evidence burdens and legal barriers. Short of Trump producing irrefutable evidence of overt fabrication of charges and damages, the umbrella of legal immunity makes prosecutors largely impervious to such lawsuits.

Ultimately, defeating malicious prosecution claims against prosecutors remains crucial to preserving impartial rule of law, notwithstanding defendants’ objections. With the system already stacked heavily in favor of prosecutions, malicious prosecution lawsuits represent one limited remedy to enforce ethics and constrain abuses of power.

But absent compelling proof meeting a high standard, the law rightfully presumes prosecutions are appropriately motivated by facts, rather than easily allowing inflammatory accusations of partisan vendettas.

References

[1] https://www.justia.com/trials-litigation/docs/caci/1500/1520/

[2] https://www.nbcnews.com/politics/donald-trump/trump-calls-ny-attorney-general-letitia-james-unhinged-demonic-after-n1287608

[3] https://www.politico.com/news/2022/08/22/trump-fbi-malicious-prosecution-00053234

[4] https://www.nytimes.com/2022/09/21/nyregion/trump-organization-fraud-trial.html

[5] https://thehill.com/homenews/administration/3620557-trump-says-charges-against-company-are-minor-civil-not-criminal/

[6] https://www.nolo.com/legal-encyclopedia/can-i-sue-the-police-or-da-for-malicious-prosecution.html

[7] https://www.latimes.com/archives/la-xpm-1997-jun-04-me-641–story.html

[8] https://www.espn.com/nfl/news/story?id=1876711