With the election now over, the courts have to decide quickly whether to move forward with the criminal cases against Donald Trump. Although this idea will pain my fellow Democrats, all of the cases should be abandoned.
Democracy’s ultimate verdict on these prosecutions was rendered by voters on Election Day. The charges were front and center in the campaign. The president-elect made a central feature of his candidacy that the cases were political and calculated to stop him from being re-elected. Despite the prosecutions, more than 75 million people, a majority of the popular vote counted so far, decided to send him back to the White House.
Mr. Trump faces three different prosecutions and a sentencing resulting from another prosecution. Two of the prosecutions were brought in federal courts by a Justice Department special counsel, Jack Smith. The two others were brought in state courts in Manhattan and Atlanta.
The federal cases are history. Mr. Smith plans to resign with other members of his team before Mr. Trump takes office in January, according to a report in The Times. He is now trying to determine how best to wind down the cases, which accuse Mr. Trump of plotting to overturn the 2020 election and illegally possessing classified documents after he left office.
Then there are the state charges, over which President Trump will have no control. A central pillar of American democracy is that no man is above the law. But Mr. Trump isn’t an ordinary man. Moreover, the state cases against him invoke legal strategies that had never been used to criminalize the behavior that prosecutors charge. Rightly or wrongly, they carry the stench of politics and, if pursued, could lay the groundwork for political prosecutions of future presidents.
The theory in the Manhattan case, in which a jury convicted him of 34 felonies, was that Mr. Trump tried to improve his chance of being elected president by paying off a porn star and then manipulated his financial statements to cover up the payment. He now awaits sentencing. His lawyers have asked the judge to toss out both the indictment and conviction, pointing to the Supreme Court’s recent decision on presidential immunity. One of them has also argued that “the stay and dismissal are necessary to avoid unconstitutional impediments to President Trump’s ability to govern.”
The theory in the Georgia case is that Mr. Trump and his allies conspired to illegally subvert the election results in the state. The Fulton County prosecutors allege that he maneuvered to have Georgia’s Electoral College votes come out in his favor, including by pressuring Georgia’s secretary of state. The case was built on a state law that makes it easier to go after organized criminal enterprises but can be used against people in any group that engaged in a pattern of criminal activities with a common purpose.
In both cases, the prosecutors’ legal theories were and are unusual, to say the least. Their premise is that financial shenanigans and political strong arming in hard-fought battles for the presidency are serious felonies that can be pursued by local prosecutors in local courts. But these are fundamentally federal, not state, concerns.
That doesn’t prove that they were brought for political reasons. But the Constitution trusts the judgment of the American people to decide whether the cases against Mr. Trump, as he has argued, were political and calculated to stop him from being elected. The people had plenty of opportunities to hear both sides, and they have spoken. That judgment is the critical check we have against the possibility of politically driven prosecutions of presidential candidates.
For many Democrats, dismissing the cases feels profoundly wrong, because they see them as the last chance to bring Mr. Trump to justice. In truth, support for the cases among many Democrats doesn’t seem to be based on confidence in the prosecutors’ legal theories and evidence. Instead, it seems to be driven by politics and hatred of Mr. Trump. That reinforces why they must be dismissed.
The New York case was brought by a prosecutor elected in Manhattan, where more than 80 percent of voters cast their ballots for Ms. Harris; that is also where the jury was drawn from. The Georgia case was brought in Fulton County, where more than 70 percent of voters cast their ballots for Ms. Harris. That is where the prosecutor was elected, and it is where the jurors would be drawn from.
Democrats should imagine instead that charges were brought in Texas and Alabama against Joe Biden using novel and untested approaches challenging how he spent money while campaigning. Those cases would be brought by hard-core Republican prosecutors, before juries and judges in deeply Republican counties. The justices of the State Supreme Courts would have all been selected in partisan elections. Every single one is a Republican. That would seem outrageous.
Some people will always be convinced that dismissing the charges will let Mr. Trump get away with crimes. But the Constitution isn’t concerned with preserving a couple of criminal cases. It is concerned with having a system of government that can hold our democracy together for centuries. So far, it has worked, even if our deep disagreements make that hold seem tenuous right now. Inviting prosecutors of the opposing political party to pursue these kinds of charges in the wake of a presidential election can only make things worse.
Thomas Goldstein is the publisher of SCOTUSblog, which reports on the Supreme Court. He was a longtime Supreme Court litigator and a counsel to Vice President Al Gore in the 2000 election disputes. This article originally appeared in The New York Times.
