This article was republished in partnership with Balls and Strikes.
In 2023, the renowned Supreme Court lawyer Tom Goldstein announced his retirement, explaining that when the court is controlled by a six-justice conservative supermajority, there is “very little that an advocate for the little guy can hope to accomplish anymore.” This week, Goldstein, best known as the founder and publisher of SCOTUSblog, reemerged to offer the sort of keen insight available only to a man who argued more than 40 cases before the justices during his illustrious career: that under the Constitution, winning a presidential election makes any crimes you may have committed magically vanish.
This is the thrust of Goldstein’s latest op-ed in The New York Times, in which he calls for the prompt dismissal of all ongoing prosecutions of President-elect Donald Trump. “With the election now over, the courts have to decide quickly whether to move forward,” Goldstein writes. “Although this idea will pain my fellow Democrats, all of the cases should be abandoned.”
Goldstein does not defend Trump’s real-world conduct at issue in any of these cases. They are, in no particular order, aimed at his efforts to overturn the 2020 election results in Georgia; his payment of illegal hush money to kill an unflattering news story about an extramarital affair; his mishandling of classified documents at his Mar-a-Lago mansion; and his complicity in the Jan. 6 insurrection, an anniversary that Trump will soon celebrate by watching many of the same lawmakers who almost died at his supporters’ hands take the formal steps necessary to make him president of the United States.
Instead, Goldstein argues that operation of the democratic process has rendered these prosecutions illegitimate. “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,” he writes. “The people had plenty of opportunities to hear both sides, and they have spoken.” Goldstein’s claim here is that under the Constitution, the 2024 election basically was a trial, and Trump’s victory is a definitive “not guilty” verdict—a verdict that applies not only to the three cases that have yet to go to trial, but also to the one in which jurors already found Trump guilty, too.
The purported constitutional equivalence between criminal trial outcomes and presidential election results will come as a surprise to anyone with a passing familiarity with criminal trials or presidential elections. Prosecutions, for example, take place in the controlled environment of a courtroom; presidential elections, by contrast, take place in a barely regulated political landscape in which reactionary billionaires are free to buy as many votes as they can afford. Prosecutions are decided by randomly selected juries of a fixed number of one’s peers; presidential elections are decided by whatever coalition decides to show up to the polls that day. Prosecutions are about determining the culpability of a specific person for a specific act in a specific jurisdiction. Presidential elections are, in effect, very expensive national popularity contests, in which an individual voter’s perception of a nominee’s alleged criminality may have everything, something, or nothing to do with how they ultimately choose to cast a ballot.
For a multitude of good reasons, the Constitution firmly rejects the legitimacy of determining innocence or guilt by popular referendum, and certainly does not contemplate allowing people accused of crimes to opt out of the criminal legal system by running for and winning elected office. (I would have thought an acclaimed Supreme Court advocate would understand basic stuff like this, but here we are.) In a courtroom, telling outrageous lies under oath is the sort of thing that can land you in prison. Out on the campaign trail, telling outrageous lies earns you raucous applause, credulous media coverage, and a 2-point polling bump.
In perhaps the most absurd passage in the op-ed, Goldstein discusses the pending state charges against Trump, which, unlike the federal cases, the president cannot unilaterally kill once he takes the oath of office. “A central pillar of American democracy is that no man is above the law. But Mr. Trump isn’t an ordinary man,” Goldstein writes. (See if you can spot the qualifier he added!)
The slippery-slope argument Goldstein is trying to make is that allowing state prosecutions of a sitting president could set a troubling tit-for-tat precedent in the future. But somehow he misses the excruciatingly obvious problem that if, in fact, “no man is above the law,” everything he writes before and after this paragraph is either: 1) a vacuous justification for ascendant authoritarianism, or 2) the sort of critical thinking that, if you were to include it in an AP Government exam in high school, would prompt a concerned note from your teacher asking if you were getting enough sleep. As it turns out, the real “central pillar of American democracy” is that no man is above the law, unless that man is deemed sufficiently “extraordinary” for one reason or another, in which case retired members of the Supreme Court bar will dust off their keyboards to crank out half-baked blog posts conflating an election result with a legal exoneration.
Throughout, Goldstein expresses great concern about the dangers that “politically driven” prosecutions might pose to the democratic order; elections, he asserts, play a “critical” role in sussing out which prosecutions are “political” and which are not. In Goldstein’s view, Democrats’ desire to see the cases through just proves that their support is based not on “confidence in the prosecutors’ legal theories and evidence,” but instead on “politics and hatred of Mr. Trump.”
But Goldstein never grapples with the implications of endorsing a framework that, in the name of scrupulously avoiding “political” prosecutions, would require prosecutors to look the other way basically anytime a president commits a crime—no matter how worthy of prosecution the crime may be, and no matter how threatening the crime is to the democratic order that Goldstein says he is so concerned with preserving. And like so many of Trump’s ostensibly reluctant defenders in the legal profession, Goldstein does not acknowledge the simple fact that his proffered solution—dismissing a criminal prosecution because the defendant happened to win a presidential election—is just as “political” a choice as proceeding as if the defendant were anyone else.
Like the Supreme Court’s decision in Trump v. United States, which transformed the Richard Nixon “when the president does it, it’s not illegal” adage into an ironclad principle of constitutional law, Goldstein’s logic would turn democratic elections into get-out-of-jail-free cards for anyone who can afford to buy one. Regular people, of course, would still be subject to regular criminal courts, where they might get life in prison for stealing a few VHS tapes. Wealthy politicians, by contrast, would be allowed to do as many crimes as they please, secure in the knowledge that as long as they file the paperwork necessary to run for office, and thereafter manage to convince a plurality of the electorate to vote for them, they will enjoy the privilege of being able to escape accountability altogether.
I am not sure why Goldstein feels passionately enough about the subject to be this bootlickingly wrong about it in public. But his choice to do so demonstrates how malleable this country’s conception of justice really is: If a defendant is famous and powerful enough, elite lawyers will write in to the newspaper of record to cravenly argue that, as a matter of constitutional law, famous and powerful people actually shouldn’t be subject to the legal system at all. As the saying goes, when you’re the president, they let you do it.
Disclosure: For about a year beginning in 2009, I wrote weekly, unpaid “round-up” posts for SCOTUSblog, and unsuccessfully interviewed with Goldstein for a job as his personal assistant. For my SCOTUSblog author page, I had a friend take my picture in front of the brick facade at the old National Capital YMCA, because I was a 22-year-old recent college graduate during the Great Recession, and needed the several hundred dollars it would have cost to get a professional headshot for rent.
