The author, who is also the guest on the podcast "Emergent Situation", discusses the moral and philosophical implications of prosecuting Donald Trump with Special Counsel Jack Smith. The author argues that even if Trump is convicted, he may emerge more powerful due to his ability to energize his base, fundraise, and potentially pardon himself in the future. This raises questions about whether pursuing the prosecution serves the greater good or undermines the rule of law. Key points mentioned include Judge Aileen Cannon's potential to derail the case, doubts about a Florida jury convicting Trump, and the possibility that the indictment may energize Trump's base.
Written by the local model on 2026-09-05,
using this article's own text rather than the other coverage of the
same event.
Every now and then I get to give the Kobayashi Maru speech to a young associate.
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I → get → associate
There are two types of young associates: those who immediately know what I am talking about when I mention the Kobayashi Maru speech, and those who stand there, deeply concerned, wearing a tolerant-of-this-Boomer1 expression but completely mystified by the reference.
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who → be → reference
Good lawyers can often avoid them or mitigate their impact, or negotiate a resolution that makes them unnecessary, but can never completely eliminate them.
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them → avoid → them
Sometimes you are going to lose.
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you → go → ?
Sometimes you KNOW you are going to lose.
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you → know → ?
This concerns young associates.
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This → concern → associates
Ken, they say, we’re going to lose this motion.
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we → say → motion
What am I supposed to do?
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I → suppose → What
The answer is that you prepare competently, advocate vigorously, and fight for your client’s rights.
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you → prepare → rights
You act like you have a chance because the client needs you to do that and the system depends on you doing that.
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you → act → that
You act like you have a chance because doing a vigorous, competent job can preserve your client’s trust in you, ease the impact of a loss, and sometimes even achieve a seemingly impossible win.
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doing → act → win
I’ve been thinking about the Kobayashi Maru speech since Trump was indicted.
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Trump → think → speech
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.
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Josh → spar → decision
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.
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it → point → him
If Judge Cannon presides over the case she can derail the prosecution in myriad ways, some of them unreviewable, if she wants to.
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she → preside → them
Moreover, there’s reason to doubt that a Florida jury will convict Trump.
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jury → ’ → Trump
Finally, and perhaps most importantly, striking Trump down with a federal indictment may make him more powerful than we can possibly imagine.
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we → strike → indictment
Trump will use the prosecution to energize his base, propagandize “independents,” and fundraise from rubes.
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Trump → use → rubes
It’s very possible it will make it easier to win the Republican nomination and plausible it will help him win the Presidency, which he will use to pardon himself and further demolish the rule of law.
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he → ’ → law
Does that mean that the Department of Justice shouldn’t do it?
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Department → mean → it
Well, I mean, that's a philosophical question.
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that → mean → ?
And I guess it might be there are other scenarios where it doesn't go exactly in the way that we're describing here, but we just sketched out a scenario in which this action by the Justice Department fails to uphold the rule of law and actually undermines it.
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action → guess → it
I guess this is a question of whether we have a consequentialist ethics, but it's the idea that you must do this because you must do it out of fealty to the rule of law.
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you → guess → law
That assumes a certain moral framework.
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That → assume → framework
I'm laying out a possibility that in fact this is quite damaging to the rule of law, or that you've described that it's likely to end up with an outcome that's quite damaging to the rule of law.
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that → lay → law
Ken White:
Well, I disagree and here's why.
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here → disagree → ?
The rule of law doesn't mean that everyone is always going to do the right thing.
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everyone → mean → thing
The process of the rule law presumes that sometimes there will be bad actors.
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process → presume → law
Sometimes jurors will nullify for bad reasons.
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jurors → nullify → reasons
Sometimes judges will make bad calls.
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judges → make → calls
The rule of law is about we have this system, it's imperfect, we're going to put the person through the process because that's how we do things.
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we → have → things
And so, ultimately, even if you think you might get a bad unfair ruling, what you do is you put it through because you want to demonstrate that no one's above the law.
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one → think → law
And so, we have to take the shot.
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we → have → shot
And because if we don't, because if you don't pursue a criminal because the criminal has put a crooked judge on the bench, then you're really completely giving up.
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you → do → bench
But the Justice Department makes strategic decisions all the time about what crimes not to charge.
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Department → make → crimes
And I mean, in this instance, even if you're thinking about holding Trump accountable, they have a parallel investigation into matters related to January 6th that presumably would be charged in Washington DC if it were ever charged.
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it → mean → DC
If you're looking at a situation where you have a menu of options about what you can charge someone with, all of the stuff we're describing here, those sound like considerations that would weigh in favor of prioritizing the January 6th prosecution, trying to move that one first.
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that → look → one
If charging Trump with overt, obvious crimes is doomed to fail for political reasons and may have negative political effects, should the Department of Justice do it?
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Department → charge → it
Let us start, as you would expect, with pedantry.
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you → let → pedantry
What do the rules say?
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rules → say → What
…and 40 more, not listed.
