Document Type

Working Paper

Publication Date

2025

Language

en-US

Abstract

Why did criminal prosecution strengthen President Donald Trump's electoral prospects in the 2024 federal election? It was not supposed to be this way: after President Trump's 2024 New York state conviction, many speculated that President Trump's "felon" status would imperil his political career. In fact, the opposite occurred: federal and state criminal prosecutions reenergized President Trump's 2024 presidential candidacy. Contemporary criminal law theories-traditional individualist, expressivist, and critical-struggle to explain why. 

This Article advances a theory of criminal coalescence to explain why the Trump prosecutions led the former President to political victory. Criminal coalescence is the intensification of mass support for criminal defendants who become icons within a social or political community. This occurs in two steps. First, communities engage in iconic identification-relating to a prosecuted individual seen not merely as a defendant, but as an icon representing shared meanings, values, and grievances. Second, prosecution, rather than discrediting the defendant, elevates his symbolic status within these communities-leading to symbolic solidarity. If President Trump is seen as an icon of antiestablishment values and personal freedom, these communities rally around him in defense of their perceived American ideals. Contemporary and historical examples-from Luigi Mangione to Karen Read to Rosa Parks-show this sociological pattern across time, regardless of the left-right political valence. This Article concludes by arguing instead for a civic prosecutorial discretion rooted in criminal law minimalism, a higher standard for politically sensitive prosecutions. This prosecutorial policy transcends two often invoked claims-accusations of "lawfare" (prosecutorial restraint) on the one hand and the maxim of "no one is above the law" (prosecutorial zeal) on the other.

Comments

DRAFT – PLEASE DO NOT CITE WITHOUT PERMISSION

DRAFT – PLEASE DO NOT CITE WITHOUT PERMISSION

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