Ken White on the unwinnable case scenario:

Yesterday, on our Emergent Situation Episode of Serious Trouble, Josh and I sparred a bit over the moral and political philosophy of Jack Smith’s decision to prosecute. I pointed out that the somewhat predictable assignment of the case to Judge Aileen Cannon — who proved herself to be an arguably lawless Trump partisan when she entertained his attempts to derail his own investigation — will make it extraordinarily difficult to convict him. If Judge Cannon presides over the case she can derail the prosecution in myriad ways, some of them unreviewable, if she wants to. Moreover, there’s reason to doubt that a Florida jury will convict Trump. Finally, and perhaps most importantly, striking Trump down with a federal indictment may make him more powerful than we can possibly imagine.

So that’s cheery.

But it doesn’t mean he shouldn’t be prosecuted.

So the Principles of Federal Prosecution suggest that if Jack Smith thinks that if Trump’s prosecution serves an important federal interest (it does) and the evidence is objectively factually and legally sufficient (it is), then he’s bound to bring the case even if Trump’s popularity makes a unanimous verdict difficult, risks a partisan judge, and threatens political upheaval. As Josh suggests, Jack Smith can and should make strategic decisions about what approach is soundest and most likely to lead to conviction. But the indictment in this case is overwhelmingly strong – one of the most devastating on its face that I’ve seen in my career. If Jack Smith can prove those facts, that is far more than enough to convict Trump. The only arguments against it are political.

The arguments for it are better.

Third, it’s corrosive and unjust to say that we won’t hold people to account because they are popular and powerful. The system doesn’t need more of that, thank you, we’re all stocked up. It’s already a fact, we don’t need to make it a policy as well. Strongmen already fare indescribably better than normal citizens when facing the justice system. Going full-on junta and making it an official principle of prosecution not to prosecute the powerful means abandoning even an aspiration of equality before the law.

Fourth, yielding to people who say “if you punish me or my friends for breaking the law I’ll hurt you” is a terrible way to run a society. It’s governance by thugs. If someone says “if you apply the rule of law to hold me accountable for my conduct, I will later abuse the rule of law to punish you,” you know that person is a dishonest, dishonorable partisan. There is no rational basis to believe that a dishonest, dishonorable partisan will ever behave well.

Once more unto the breach.

H/t Rob