Legendary Supreme Court attorney and SCOTUSblog publisher Tom Goldstein recently argued in The New York Times:
Now that the election is over, the courts must quickly decide whether to move forward with the criminal cases against Donald Trump. While this idea will hurt my fellow Democrats, all issues must be given up.
This seems off base to me from the start. The emotion that Democrats, Republicans or independents feel – pain, joy or anything in between – does not determine whether criminal cases should proceed. But let’s unpack his reasoning.
Goldstein continues:
Democracy’s final verdict on these prosecutions was pronounced by voters on election day. The accusations were central to the campaign. The president-elect made it a central feature of his candidacy that the cases were political in nature and designed to prevent him from being re-elected. Despite the persecutions, more than 75 million people, a majority of the votes counted so far, decided to send him back to the White House.
Okay, so now it’s clear that it’s not a matter of strange framing, but a flawed premise. As I explained prior to Election Day, Trump’s criminal cases were effective on the ballot, only because the election results would determine whether and how the various prosecutions would take place. But they weren’t literal on the ballot.
Voters put Trump back in the White House for all kinds of reasons, none of which matter whether his affairs continue. For the same reason: if Trump had lost the election, it would not have been an additional reason to pursue the case. It would simply have removed a legal obstacle to their further development.
Goldstein is right when he says the two federal cases “are history.” Special Prosecutor Jack Smith already appears to be taking steps to abolish them. But even if Smith had plowed through Trump’s inauguration, the cases would have at least paused and likely been dismissed by Trump’s Justice Department, Trump would have pardoned himself, or both. Either way, the federal cases appear to be on their way to being “abandoned,” so it’s actually a moot point.
What about the affairs of state, where presidents do not have the power to pardon or dismiss?
That’s where things get even stranger. Goldstein writes, “A central pillar of American democracy is that no one is above the law.” So far, so good. He then continues: “But Mr. Trump is no ordinary man.” The problem with this statement is that not only does it not do the job of a factual argument, but it also contradicts the previous line. That is, if a central pillar of American democracy is that no one is above the law, then that pillar applies to everyone, no matter how apparently extraordinary they are.
“Furthermore,” the piece continues, “the state’s cases against him employ legal strategies that have never been used to criminalize the conduct that prosecutors charge. Rightly or wrongly, they carry with them the stench of politics and if pursued, they could lay the groundwork for political persecution of future presidents.”
Let us consider these points in turn: that (1) the state cases involve new charges, and that (2) they smell political 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 the relevance of this. It is true that Trump’s new behavior has been met with new charges. So he should receive no less fair trial than any other defendant in his fight against them. I also assume that criminal cases cannot be brought against a president while he is in office.
But the novelty does not logically lead to dismissal – unlike, for example, a delay until the defendant leaves office and loses the advantage gained by winning a break in his prosecution. You can argue that the issues should not have been raised in the first place, but whatever the merits of that argument, Trump’s election has not strengthened it.
On to the smell. The statement that the cases “[r]wrongly or unjustly…bearing the stench of politics’ borders on meaningless. At best, this reads as another way of saying that the cases should not have been brought in the first place. Why would it have been right to prosecute a stinking case only if Trump had lost at the ballot box? Again, things being stinky, stupid, or whatever were arguments (such as they are) you could have made all along. And again, they didn’t get any stronger on Election Day.
But as for the continued prosecution of the cases that lead to political persecution of future presidents, as I understand the argument, it rests on the premise that if the cases were dismissed nowwould that stop Republicans from targeting Democrats in the future? One of the many reasons to doubt this premise is that the leader of the Republican Party — the man who would benefit from the op-ed’s proposal — has repeatedly vowed retaliation against his opponents.
Subscribe to the Deadline: Legal newsletter for expert analysis of the week’s top legal stories, including Supreme Court updates and developments in Donald Trump’s lawsuits.
This article was originally published on MSNBC.com
