When Lawfare Becomes “Lawful”

Lawfare—the regime’s exploitation of our legal system to prosecute its political opponents—reaches far and wide. It has corrupted our criminal and civil justice systems, administrative bureaucracy, state and federal courts, colleges and universities, electoral system, bar licensing authorities, and congressional proceedings, among countless other institutions.

Much digital ink has been spilled (including by me) exploring the legal defects in regime lawfare. The federal prosecutions of Donald Trump are rife with due process violations while the state prosecutions reveal rampant judicial and prosecutorial misconduct. Numerous lawsuits against Elon Musk reveal arbitrary agency decision making and a vindictive Department of Justice. The removal of Trump’s name from the ballot by certain state election officials violates Article II, the Twelfth Amendment, the Fourteenth Amendment, and much more. The selective prosecutions of Steve Bannon and Peter Navarro violate the Fifth Amendment.

Penn’s pretense that Professor Amy Wax’s speech was really “conduct,” the abuse of defamation law to railroad Mark Steyn, and the prosecution of Douglass Mackey for election-related memes pose a grave threat to our free speech rights. Meanwhile, the January 6 prosecutions jeopardize our rights to assemble and petition the government for a redress of grievances while exposing DOJ’s rank hypocrisy. And then there’s the attack on John Eastman, which is rife with due process and First Amendment violations—and almost unbelievable judicial overreach.

For decades, the regime has worked to proscribe all the speech and action it opposes. That process is nearly complete. When it does, lawfare will become “lawful.” At that point, political prosecutions will adhere strictly to statute. Prosecutors, plaintiffs, and government bureaucrats will pay scrupulous attention to legal niceties. And courts will ram down defendants’ throats all the due process they can swallow. Indeed, to quote a former law professor of mine, we will have nearly reached the point where, like Hell itself, our country “is full of laws and due process is strictly observed.”

Three Goods in Tension

Through centuries of continuous refinement, our legal system was able to reconcile three goods: doing justice in an individual case, preserving our form of government, and protecting our way of life. We called this process the “common law.” (Our Constitution was structured using the same type of legal reasoning.) The common law and our Constitution earned the respect of ordinary people because of their reason-based reconciliation of these three goods, the grandest accomplishment of our Western legal order.

In principle, reconciling the tension between these goods was quite simple: no decision in an individual case should undermine our form of government or impair our way of life. Higher goods take priority. At the same time, the impairment of individual rights must be no greater than necessary to preserve our form of government and way of life. If simple in theory, reconciling these goods proved difficult in practice. Doing so required judges to discover rules to balance them, procedures we call “due process.”

Due process is the set of rules that, in most cases, assists the search for justice in individual cases without impairing our form of government or way of life. It governs every aspect of the criminal justice system: investigation, indictment, pre-trial litigation, trial, verdict, sentencing, and appeal. In criminal cases, due process includes the rules of criminal procedure, the rules of evidence, and constitutional law (for example, the right listed in the Fourth Amendment for the people to be secure against unreasonable searches and seizures), as well as an enormous body of case law and statutory requirements.

But due process has been a victim of its own success. It has worked so well for so long that Americans revere it while never asking the question, “What happens when the strict observance of due process undermines our form of government or way of life?” We don’t ask because we tend to think solely in terms of defendants’ rights—and those are protected most of the time. In that regard, the legal system has earned our respect. The problem is that we have forgotten the other two goods.

We assume that justice is whatever happens when process is duly applied. Weirdly, we have a tendency to believe this even when the rules are inane or the consequences destructive of our way of life.

Lawfare capitalizes on this one-dimensional respect. It exploits the legal system’s procedural rules for the purpose of fundamentally transforming our form of government and way of life. It does this by using the legal system to make examples of the political, legal, and intellectual champions who are trying to preserve America: prosecuting, bankrupting, and marginalizing them to send a message to you. It confuses us into accepting the legitimacy of these political prosecutions by focusing our attention solely on the question, “Were the defendants afforded due process?”

Now, however, history presents us squarely with a different but more important question: What happens when the strict observance of due process undermines our form of government and way of life?

Conflict of Ends

As mentioned above, the lawfare against Trump, Eastman, Musk, Navarro, Bannon, Steyn, Wax, Mackey, and others is unlawful. But it is less unlawful than you might think.

I don’t mean that it is justified. Rather, the creeping tyranny of a century’s worth of progressive scheming has redefined lawfare as lawful. The goal posts have moved. When it comes to the regime’s opponents, speech is assault, assembly is sedition, ridicule is defamatory, petitioning the government is obstruction, and memes are a civil rights violation. As I wrote last fall in “Show Trial, American Style”: “Today, all sorts of inane activities are ‘crimes’—a bastardization of the moral nature of law well documented nearly 15 years ago by Harvey Silvergate and Alan Dershowitz in Three Felonies a Day: How the Feds Target the Innocent.”

Conversely, for the regime, raiding the home of a president is due process. Arresting him is necessary to save “our democracy.” The Fourteenth Amendment requires the opposing presidential candidate be removed from the ballot. State legislators’ prerogative to pass election laws must be ignored. Equal protection requires unequal application of the laws. It’s lawful to trick citizens into voting for a candidate who isn’t running. And directly threatening the opposing side’s lawyers isn’t a Sixth Amendment violation.         

The point is that there are now enough statutes and inane legal opinions that anything can be reclassified as its opposite. All that’s required is a cursory search of civil statutes, the criminal code, or the Code of Federal Regulations plus a little bit of forum shopping—whether for a benighted jury pool (for example, Washington, D.C. or New York) or a left-wing judge (everywhere) or both (almost any American city).

Resolving the Conflict

So what happens when the strict observance of due process undermines our form of government?

You might recall that during her tenure as Secretary of State, Hillary Clinton availed herself (for still unknown reasons) of the use of a personal email server where she stored highly-classified information. This was a federal crime, and an Intelligence Community inspector general referred it to DOJ for investigation.

Shortly before the 2020 election, former FBI Director James Comey issued an unusual statement announcing his recommendation not to prosecute Clinton: “no reasonable prosecutor would bring such a case,” Comey explained, citing the weakness “of the evidence” and “the context” of Clinton’s actions. Viewed narrowly, this conclusion was nonsense. DOJ had sufficient evidence to prove each element of 18 U.S.C. 1924 beyond a reasonable doubt. As a technical matter, any federal prosecutor would feel comfortable proving those facts while affording the defendant all the due process the law requires. How do I know? I watched Comey’s statement live from a United States Attorney’s Office while I was a federal prosecutor.

But in a larger sense, Comey was right: no reasonable prosecutor would bring that case, even though the evidence was overwhelming. Why? Because indicting a leading party’s candidate for president would subvert our form of government—a higher level good than the need to do justice in any given case. You simply cannot indict the opposition’s candidate without undermining the electorate’s faith in the legitimacy of representative government—that is, in our form of government. Of course, this is not what Comey meant when he referred to a “reasonable prosecutor” declining to prosecute. How do we know? Because Comey supports the prosecution of the other party’s leading candidate for high office.

The Clinton example is revealing. It shows why we must let the guilty (Clinton) go free for our sake. Lawfare reverses this process. It insists on strict rule application at any cost. It is the technical application of the law to subvert the justifications for law in the first place. It is the use of the legal system to undermine our form of government and way of life. Lawfare is perfected when political prosecutions comply fully with statutory law and due process is strictly observed. And with that, the practitioners of lawfare can dismantle our civilization. 

To avoid this, we cannot look merely to due process to decide if justice has been done in politically charged matters. Why? Because there is already a law proscribing nearly everything. We’ve created a haven for those who would wage lawfare—people like Jack Smith, Alvin Bragg, Fani Willis, and others, the Lavrentiy Berias of twenty-first century America.

The federal and state prosecutions of Donald Trump are perfect examples of this. Though I’ve written on the legal weaknesses of those cases at length, by focusing on the elements of the offenses I risked distracting from the larger point. For the same reasons that “no reasonable prosecutor” would have prosecuted Hillary Clinton (the real reasons, not the reasons cited by James Comey), they never should have indicted Donald Trump. But by doing so, malevolent prosecutors have injured our form of government and threatened our way of life. Indeed, it is irrelevant if Trump is guilty of the crimes charged—at least it is irrelevant as a legal matter.

By corollary, it is a mistake to limit our criticisms of lawfare to the legal shortcomings of any given case—as though the civil and criminal prosecutions of Trump, Eastman, Musk, Steyn, Wax, Bannon, Navarro, Mackey, the January 6 defendants, and others are acceptable provided they follow the appropriate procedural requirements.

Lawfare is the process of using due process to render the principles of the American Founding unlawful. We must refuse to discard the principles of the Founding—even when Congress outlaws them, an overzealous prosecutor indicts them, or an activist judge sentences them. As Justice Robert Jackson said, “the Constitution is not a suicide pact.”

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