Thomas Goldstein (SCOTUS Blog) offers his views on the criminal cases against Trump. The people have spoken; it is time to drop the cases: “Democracy’s ultimate verdict on these prosecutions was rendered by voters on Election Day.”

I am not a fan of any publicity that feeds into Trump’s persecution narrative and, therefore, can think of many reasons to drop these cases. Still, I find this argument super weak. A majority of the electorate in 2024 said that being a felon does not disqualify you for office. The national electorate acted, in other words, as the DC electorate did, when it reelected Mayor Marion Barry to a second term. No one suggested, then, that Barry’s popularity and reelection somehow wiped out his criminal convictions. The electorate’s willingness to elect a convicted felon does not render the felony conviction dubious per se. We adjudicate whether individuals have broken the law in the judiciary–and presumably it is also for the judicial system to determine if the code of professional ethics has been violated by a partisan-motivated prosecution.

Even assuming for the purposes of argument that these prosecutions were illegitimate because they were motivated by politics, that also would not be a first. No doubt partisan motivations drove the investigation of Barry for cocaine use and Eliot Spitzer for prostitution. That does not, however, render those investigations and, in Barry’s case, conviction a per se violation of the rule of law.

Going forward, the difficulty will be distinguishing run-of-the-mill mixed-motive prosecutions from more severe breaches of the rule of law such as investigating and charging one’s political opponents and casting them as the “enemy of the people.” As someone who has lived in an authoritarian state, I can say that line is real, even as it is difficult to define.

We need to have a discussion about the line, but we should not concede in advance that the line has already been passed by suggesting that the 2024 election determined it was.