Benjamin Levin (Washington University in St. Louis School of Law) has posted Prosecuting a President (23 Ohio State Journal of Criminal Law 267 (2026)) on SSRN. Here is the abstract:
In the lead-up to the 2024 presidential election, many commentators treated the prosecutions of Donald Trump as critically important—bulwarks against authoritarianism and reminders that no one is above the law. Yet despite prosecutions and convictions, Trump was elected president once again. It’s hard not to view the prosecutions as failures across many dimensions. In this essay, I argue that the Trump prosecutions have important lessons to teach us about the limitations of both the criminal system and—more broadly—liberal legalism. I contend that the Trump prosecutions should serve as important reminders that criminal law is culturally contingent and that a prosecution cannot serve as a magic wand to do away with objectionable conduct. More broadly, I argue that the Trump prosecutions should serve as important illustrations of the limitations of liberal legalism as a response to authoritarianism. Criminal legal institutions—like all legal institutions—are culturally embedded. They depend on the judgment of discretionary actors, on public perception, and on politics. The Trump prosecutions show that law can’t be divorced from politics. Law and legal institutions might be important components of an attempt to combat Trumpism or advance justice. But they are only components. Arguments and tactics that rest on a hope that Trumpian politics can be defeated by some sort of apolitical, liberal law miss the reality that Trumpian politics can only really be defeated by politics.
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