The wrong way to think about Donald Trump's criminal cases after his election

Tom Goldstein, legendary Supreme Court lawyer and editor of the SCOTUS Blog, recently stated in the New York Times:

With the election now over, the courts must decide quickly whether to pursue criminal charges against Donald Trump. Although this idea hurts my fellow Democrats, all cases should be dropped.

This seems irrelevant to me from the start. The emotion Democrats, Republicans, or independents feel, pain, joy, or anything in between, does not determine whether criminal cases should proceed. But let’s break down his reasoning. Goldstein continues:

The final democracy verdict on these lawsuits was delivered by voters on Election Day. The accusations were at the center of the campaign. The president-elect argued in his candidacy that the affairs were political and calculated to prevent him from being re-elected. Despite the lawsuits, more than 75 million people, the majority of the popular vote counted so far, decided to send him back to the White House.

OK, so now it's clear that this isn't some weird framing but a flawed premise. As I explained before Election Day, Trump's criminal cases were indeed on the ballot, only because the outcome of the election would determine if and how the various prosecutions would proceed. But they weren't literally on the ballot. Voters sent Trump back to the White House for all kinds of reasons, none of which matter to the continuation of his business. Likewise, if Trump had lost the election, that would not have been an additional reason for the lawsuits to continue. It would have simply removed a legal obstacle to their prosecution.

Goldstein is correct that the two federal cases are a thing of the past. Special Advisor Jack Smith already appears to be taking steps to put an end to their activities. But even if Smith had continued until Trump's inauguration, the cases would have at least been stayed and likely dismissed by the Trump Justice Department, Trump would have pardoned himself, or both. Regardless, the federal cases appear to be on the verge of being abandoned, so it's basically a moot point.

So what about state cases where presidents do not have the power to pardon or revoke?

This is where things get even stranger. Goldstein writes: “One of the central pillars of American democracy is that no one is above the law. So far, so good. Then he continues: But Mr. Trump is no ordinary man. The problem with this statement is that in addition to not doing the work of a real argument, it contradicts the previous line. In other words, if one of the central pillars of American democracy is that no man is above the law, then that pillar applies to everyone, no matter how extraordinary they are. has never been used to criminalize the behavior accused by prosecutors. Rightly or wrongly, these measures smack of politics and, if pursued, could lay the groundwork for political prosecutions of future presidents.

Let's consider these points in turn: that (1) state affairs involve new accusations, and that (2) they smack of politics and therefore could lead to political prosecutions of future presidents if they continue.

I happen to agree with the novelty point. I just don't see its relevance here. It is true that Trump's new conduct has given rise to new accusations. So he should not be given due process to fight them, just like any other defendant. Indeed, I also take it for granted that no criminal case can be brought against a president while he is in office.

But the novelty does not logically lead to the conclusion of a dismissal of the case, as opposed to, for example, a stay until the accused leaves office and loses the advantage he obtained by obtaining a pause in his pursuits. It can be argued that these cases should not have been brought in the first place, but whatever the merits of that argument, Trump's election has not strengthened it.

On the stench. The statement that cases [r]rightly or wrongly… convey a stench of politics that borders on meaninglessness. At best, this amounts to saying that the lawsuits should not have been filed in the first place. Why would it have been appropriate to pursue a smelly case only if Trump had lost at the polls? Again, whether the cases were stinky or stupid or whatever were arguments (such as they are) that could have been made all along. And again, they didn't get any stronger on Election Day.

But as for the prosecutions leading to political prosecutions against future presidents, as I understand the argument, it is based on the assumption that if the prosecutions were dropped now, it would deter Republicans from targeting Democrats in the future. future ? Among the many reasons to doubt this hypothesis is that the head of the Republican Party, the man who would benefit from the editorial proposal, has repeatedly vowed revenge on his opponents.

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