Donald Trump’s election to President of the United States for the second time in November 2024 marked the beginning of the end of a sustained effort to hold him accountable in court for conduct that many Americans viewed as criminal.[1] Trump received not only the majority of Electoral College votes but a decisive plurality of the popular vote as well.[2] At the time of the election, he had already been convicted of thirty-four felonies surrounding a complex fraud to hide the use of campaign funds for hush money to an adult film actor.[3] Prior to this conviction, the decisions of a federal special prosecutor in Washington, D.C. and a Georgia district attorney to indict Trump on charges related to the 2020 presidential election had generated a heated public debate.[4] In the wake of Trump’s election, special counsel Jack Smith moved to withdraw these charges and indicated his intention to step down in the near future.[5] At one end of the spectrum of opinion are those who see nothing questionable or unusual in such proceedings, only the normal workings of the legal process. Trump was treated as any other potential accused might be on the same facts; no one is above the law, and Trump’s status as a highly controversial President and candidate for 2024 is and should be irrelevant to the workings of criminal justice.[6] At the other extreme, militant supporters of Trump view these upcoming trials as illegitimately political[7]—a way for Democrats to obtain partisan political advantage during an election year, possibly eliminating the Republican candidate from competition. In between, there is a range of views, either in favor of or against these trials, that take into account considerations such as the impact of the trials and the eventual outcome—whether of acquittal or of conviction—on the political fabric of American society and fundamental values such as freedom of speech and probity in public life.
Necessary Justice: “Political” Trials and Modern Political Philosophy
* Lloyd C. Nelson Professor of International Law, NYU School of Law; Center for Law and Philosophy, NYU School of Law. I am enormously grateful to my research assistant Olga Obolenets (B.A., University of Chicago; M.Phil., University of Cambridge), rising 3L at NYU School of Law, for her excellent work on this article. I also wish to thank participants in workshops where earlier versions were presented for their illuminating and useful comments, especially Kevin Davis, Liam Murphy, Moshe Halbertal, Sam Scheffler, Jeremy Waldron, and Lewis Kornhauser. I had wide-ranging discussions with Peter Berkowitz and Ruti Teitel about the manuscript, which considerably sharpened my focus and analysis. On Machiavelli and Montesquieu, I am particularly grateful to Vickie Sullivan for her insightful and generous comments.