The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a piece at the Lawfare website, Harvard law Prof. Jack Goldsmith responds to critics of his New York Times article arguing that the dangers of prosecuting Donald Trump for trying to overturn the 2020 election may exceed the benefits. One of the critiques he addresses is my own. In this post, I will offer a rejoinder. But note that both Goldsmith's analysis and mine are focused on the federal indictment of Trump filed by special counsel Jack Smith. We do not address the more recent Georgia statement indictment.
Here's the part of Goldsmith's response that addresses my critique:
I agree that "letting Trump off the hook" might be far worse than prosecuting him. My main point is that we cannot now know, and the answer is not obvious, at least to me, especially in light of our broken politics, the novelties and uncertainties in the legal case against Trump, the weight of past Justice Department mistakes and excesses in investigating Trump, and (to add a point not in my piece) Eric Posner's reminder that "trials in which legal proceedings are used to remove political opponents from power or prevent them from taking it … have a long and storied history of backfiring on their perpetrators." If Trump is convicted, and the trial is and seems fair, and the Supreme Court upholds its validity, Smith may well be a triumphant savior of American democracy, especially if Trump self-destructs in ways that diminish him politically. But what if only a few of these things happen, or none of them?
Somin says, for example, that if Trump is not prosecuted, future presidents will be emboldened to repeat his experiment. Maybe, but maybe not, in light of the financial and reputational costs Trump has suffered. The larger point, however, is that the prosecution might go off the rails in ways that make things worse. Somin's argument appears to assume that conviction is assured. What if Trump is acquitted (including via jury nullification), or his conviction is thrown out? What if it becomes clear that what he did was not unlawful, as may well happen? What if Trump wins the presidential election and perceived overkill by the Biden Justice Department is seen as a contributing cause? These outcomes might well embolden a future Trump more, perhaps much more, than non-prosecution. Very hard to say. In assessing the upsides and downsides of the prosecution, one must think in terms of all plausible futures and counterfactuals. Yes, as I said in the opening, the future may be such that non-prosecution would be worse, perhaps much worse, than prosecution. But the opposite might be true as well. We cannot be confident now.
I appreciate Goldsmith's thoughtful response, and am flattered he devotes more space to my piece than any of the others addressed. But I remain unconvinced that the risks of prosecution outweigh the benefits, or even that this is a close question.
Goldsmith is right that Trump could potentially get away with his crimes and be emboldened to further wrongdoing, even if he gets prosecuted (e.g.—he might be acquitted). But if he's not prosecuted at all, that possibility becomes a virtual certainty.
I do not, in fact, believe conviction is certain. But I do think there is a high likelihood of it, given the strength and seriousness of the charges against Trump. I discussed some of the reasons for that legal assessment here and here. I see little chance that a conviction would be reversed, given that the prosecution's position on most relevant legal issues is backed by longstanding Supreme Court precedent, and the Court has a strong presumption (recently reaffirmed) against overturning statutory precedent.
The risk of jury nullification is harder to gauge. But I think it, too, is relatively modest, given that strong partisans are likely to be removed for cause from the jury pool and jurors generally do a better job of controlling bias and evaluating issues fairly than voters (admitted a low standard of comparison). Moreover, the case will probably be tried in Washington, DC, where the jury pool is unlikely to include many hard-core Trump supporters.
If the chance of getting a conviction were very low or nonexistent, that would be a good reason not to prosecute. But that's pretty obviously not the situation here.
Goldsmith suggests future politicians might not be emboldened to repeat Trump's experiment, if he escapes prosecution, because of the "the financial and reputational costs Trump has suffered." It seems to me any such costs are greatly outweighed by the ways in which his Big Lie has enabled Trump to remain the lead contender for the GOP nomination, and avoid the kind of political repudiation usually suffered by presidents who lose their reelection bids.
I'm also skeptical the prosecution will somehow catapult Trump to victory in the 2024 election. It's possible the various indictments helped in him the GOP primary. But his lead over his rivals there is so large (consistently at 20-30 points or more over the last several months) that any marginal boost from this indictment is unlikely to be decisive. By contrast, survey data consistently show that indictments and conviction are likely to harm him with general election voters. If the election is close, even a small shift against Trump could be significant.
I'm not convinced that electoral calculations should play any significant role in decisions to indict and prosecute Trump. Ultimately, they should be guided by the severity of the crime, and considerations of retribution and deterrence. But for those who disagree, the available evidence suggests prosecution is more likely to harm Trump's electoral prospects than help him.
Finally, I agree we should consider "all plausible futures and counterfactuals." But there should be a heavy presumption against giving a president guaranteed impunity for the heinous crime of trying to use force and fraud to stay in power after losing an election. The scenarios and risks posited by Goldsmith are nowhere near sufficient to overcome that presumption. Indeed, they are much less grave than those on the other side of the ledger.