The Wreck and Ruin of Anti-Trump Lawfare

Democrats failed utterly in their abuse of the law and now reap the consequences, while Trump imitates their failures, expecting a different result.

W ith the criminal indictment of New York Attorney General (NYAG) Letitia James following upon the indictment of former FBI director James Comey, it should be beyond dispute that the Biden-era lawfare campaign against Donald Trump was both a huge electoral failure and a disaster for American civics. Like the Salem witch trials, the march to the Civil War, Japanese internment, and other dark periods in our history, this whole era will be studied as a form of madness that its inhabitants should have seen as such but could not resist.

Democrats made those choices and are living with the consequences, which were predictable and are now out of their control — just as Trump and his team are now making their own choices, which will have consequences that are predictable and will sooner or later be out of their control. The consequence is a downward spiral that will be hard to stop and will take years to repair.

The Democrats who pursued the lawfare campaign did not even achieve the short-term goals they aimed to obtain as a result. Criminal lawfare didn’t pay. Somehow, seeing that this strategy failed disastrously, Trump has decided to repeat it.

A Ruinous Age of Lawfare

By “Biden-era lawfare against Trump,” I mean six legal proceedings: the four criminal indictments against Trump, the NYAG’s civil case against the Trump Organization, and the lawsuits in various states that attempted to bar Trump from the ballot under the 14th Amendment. Those six major proceedings aimed, collectively, to jail Trump, to prevent voters from having the choice to return him to the presidency, and to destroy his business empire and ensure that the fortune he spent a lifetime building could not be passed on to his children. At this writing, the federal criminal cases have been dropped, one of the state cases has been effectively halted while the other produced no real sentence, the NYAG civil case saw its penalties thrown out on appeal, and the disqualification cases were roundly rejected by the United States Supreme Court.

It would exhaust the reader’s patience to fully rehash here all of the many ways in which these six sets of cases were unprecedented, abusive, legally defective, selectively prosecuted, and otherwise ill-considered. That’s not to say that there were never grounds to charge or sue Trump, or that every argument made in his defense was valid. But every case — even the strongest one, the Mar-a-Lago boxes case — had serious problems. None lived up to the standard for bringing an ordinary criminal case that would have been brought against a nonpolitical figure. The overall effect was to shatter prior norms about the partisan and political abuse of the law, and to infect the whole process so badly that it was impossible to get traction for charges that might have accomplished something if brought in a more carefully drafted and timed fashion.

Just for a sampling of the problems I covered at the time in my own writings:

• Manhattan DA Alvin Bragg’s investigation, which was conducted by special prosecutors hired for the specific purpose of getting one man, working for a district attorney who campaigned on getting Trump, resulted in the first-ever state prosecution premised upon violations of federal election laws, and rested upon a ridiculous time-travel conspiracy theory that Trump stole the 2016 election by lying in private to his own checkbook in 2017 and 2018. The indictment and prosecution of these charges suffered from an almost bottomless well of legal defects and sharp practices, including highly creative efforts to extend the statute of limitations, the equally creative inflation of misdemeanors into felonies by incorporating uncharged crimes without even saying what those crimes were, the effort to use state law to enforce federal rules within the exclusive purview of the Federal Election Commission, the charging of “fraud” in a private record that nobody was supposed to see in violation of New York’s case law on the statute, the violation of Trump’s Fifth Amendment and state constitutional rights by bringing a multiplicitous and duplicitous indictment that expanded a single agreement to make eleven installment payments into 34 separate felony counts, and Bragg’s refusing to clarify the charges before trial so he could change theories as he went along. The trial itself involved further violations of Trump’s rights, including introducing, without cross-examination, an agreement to pay a fine to the FEC by American Media Inc., in violation of Trump’s Sixth Amendment right to confront witnesses, and violating Trump’s Sixth Amendment right to a fair trial by holding a partisan media circus sent by the Biden-Harris campaign and led by Robert De Niro to talk up the charges to the press just before the case went to the jury.
• The NYAG case, which was so weak that even Bragg wouldn’t bring it — after which one of Bragg’s special prosecutors violated legal ethics by publicly laying out the case for charging Trump based on a grand jury investigation he conducted — sought to impose vast and disproportionate penalties on Trump’s business for plainly immaterial puffery regarding his property values, which were highly unlikely to mislead sophisticated banks that knew who they were dealing with and that were all ultimately repaid. James, like Bragg, campaigned openly on using her office to go after Trump.
• The Georgia election fraud racketeering prosecution was similarly brought by a partisan DA, Fani Willis, who campaigned and fundraised on prosecuting Trump. Willis and her lover and special prosecutor Nathan Wade brought an overblown RICO conspiracy case that alleged neither a proper conspiracy nor a proper RICO case, charged counts that were thrown out for failing to specify what law was broken, and only charged one count that accused Trump of a specific violation of the criminal laws — a count that got tossed because of a doctrine settled by the Supreme Court since 1890 that states can’t prosecute false statements to a federal court.
• The federal case brought by special prosecutor Jack Smith in D.C. was built around a charge of a “scheme to defraud the United States” by sending fake slates of electors to Congress, and charged as part of that and the other counts that Trump was responsible for the January 6 riot at the Capitol. But the electors scheme was not legally fraudulent because it was out in the open. As I detailed here and here and here, the charges flouted three distinct unanimous and long-standing Supreme Court precedents: one decision ruling that the statute doesn’t cover election frauds, a second ruling that it doesn’t criminalize open defiance of federal law, and a third limiting prosecutions of political speeches to direct incitement of imminent lawless action. That’s even before the Court in another January 6 case rejected Smith’s reading of the statutory provision behind two of the other three counts in that indictment, and before the justices found that Smith had charged Trump for official acts covered by presidential immunity. Moreover, in the course of the prosecution, Smith tried to get Trump gagged from defending himself in public about charges directly affecting his presidential campaign. Moreover, Smith, who delayed years in bringing the charges while Democrats litigated them publicly in congressional hearings, then insisted that they needed to go to trial before the election, for nakedly political reasons.
• Smith’s other case, brought in Miami federal court involving Trump’s retention of boxes of classified documents, should have been the strongest one for prosecuting the then-former president. It suffered from the outset from how dramatically the decision to charge Trump departed from the treatment of Hillary Clinton — including the fact that Smith turned the screws on Trump’s lawyer, a 180-degree reversal of how deferentially the Comey-led investigation had treated Mrs. Clinton’s attorneys. The Florida case ended up getting stopped by constitutional defects in Smith’s appointment.
• The effort to disqualify Trump from the ballot required ignoring the constitutional definition of what it means to “engage[] in insurrection” in order to cover inflammatory speech before the fact. More here and here. It lost unanimously at the Supreme Court on other grounds.
• When Trump was indicted, many prominent Democrats duly intoned that “nobody is above the law” and suggested that the mere fact of his indictment was more important than whether the charges had any legal merit, were unprecedented applications of the law, or were driven by partisan animus. This is, of course, not how they responded back in the days when they rallied around Bill Clinton’s right to commit felonies while in office.

As I said, this is not even close to being an exhaustive list of how the law and its normal course were distorted in these cases. Andy McCarthy has written at much greater length on the flaws with the NYAG and Manhattan DA cases, especially regarding how they were tried, how the Georgia case was prosecuted, how the Biden White House was involved in the four criminal cases, and why Smith’s appointment was legally improper.

In observing the problems with the six main cases of Biden-era lawfare, I am not talking here about the two Trump impeachments brought during his first term. For the record, I opposed the first impeachment but supported the second. Impeachment is a political rather than legal remedy. It was designed to deal with the specific situation where a president abuses his powers in ways not reachable or clearly addressed by the criminal laws. It is different in both kind and degree from pursuing political ends through the courts: rather than place the fate of the president in the hands of one trial judge or twelve jurors in a single city, the ultimate decision belongs to the senators elected to represent all 50 states of the union.

Nor am I even including the broader picture of legal assaults and investigations that included the January 6 and Stop the Steal prosecutions of Trump allies, the jailing of Peter Navarro for contempt of Congress, the various indictments of Steve Bannon, the tax indictments of the Trump Organization and Allen Weisselberg, the efforts to disbar Trump attorneys, or Trump’s first-term travails such as the Russiagate investigation and prosecutions of Michael Flynn and Roger Stone. Some of those things were justified, and some were not. Their collective effect undoubtedly fed the siege mentality and desire for retribution in kind that now animates Trump and his followers, while encouraging Democrats in believing that they were dealing with a pervasive pattern of lawbreaking that required the blunderbuss application of whatever legal tools could be found to hand.

Ruin and Retribution

The potential consequences of runaway lawfare were widely predicted, and came to pass. Democrats got nothing out of what they did, they suffered immediate political blowback, and now they face personal jeopardy.

First, the cases failed. As noted, several of the charges came apart in the courts due to legal defects in either the charges or how they were brought, and by whom. Defenders of the lawfare strategy will complain that the Supreme Court should have resolved things differently, but in designing their strategy, they should have foreseen that a conservative Supreme Court would be unsympathetic to their arguments. Moreover, it was by no means only the Supreme Court, or only the conservative justices, who rejected these arguments.

Second, the whole thing was an electoral failure. That, too, was a foreseeable possibility. The first Trump impeachment did no favors for congressional Democrats, just as was the case for congressional Republicans after the Clinton impeachment. Trump’s standing in primary polls skyrocketed after he started getting indicted, a rally effect that destroyed any prospect of his being defeated in the Republican primaries. The collapse of the criminal cases after the Bragg trial meant that Trump was not, as planned, trapped in courtrooms all summer and fall of 2024, and he ended up not only being elected again but winning the national popular vote for the first time. While one can debate the impact on that outcome of the lawfare campaign, the fact that Trump was more popular after it than he had ever been before suggests that the American people saw this campaign as an abuse of the law, and reacted accordingly.

Third, it changed Trump’s behavior. This, too, was predictable and predicted. Trump is famously vindictive and also famous for seeing the world in terms of power and leverage rather than rules and norms. In his first term, surrounded by cool-headed Washington veterans and legal professionals such as Jeff Sessions, Bill Barr, and John Durham, Trump declined to go after Mrs. Clinton and took only the most cautious steps to bend prosecutorial powers against his enemies and pursuers. But having been dragged through expensive investigations, booked and mug-shotted, compelled to sit for weeks in a Manhattan courtroom, branded a felon in the most ridiculous of the cases against him, and seen a colossal judgment entered with intent to destroy his family business and fortune, Trump responded the way you would have expected Trump to respond. He talked often on the campaign trail about retribution, and in office, he has meant it.

The fact that Democrats should have seen this all coming doesn’t mean that Trump is right to do it. Democrats will tell you that Trump was already bad, but he has gotten worse. Similarly, Trump defenders will tell you that Democrats have already abused the law to get Republicans, but they can and will get worse. The cycle of abuses inevitably gives each side a longer list of justifications, rationalizations, and excuses for abuse.

Even aside from the flagrantly retributive purpose of bringing these charges, the Comey indictment simply doesn’t satisfy the legal standard for perjury. The James case, at least, appears so far to be legally defensible, and it surely would surmount the standards that James herself applied to the case she brought against Trump. My sympathy for her being hoist by her own petard is very limited. But the case is also penny-ante mortgage fraud of the kind the Justice Department would rarely if ever bring under the mortgage-fraud statute, 18 U.S.C. Section 1014. Yet, rather than being satisfied with that charge, the indictment piles on a truly excessive charge of bank fraud under 18 U.S.C. Section 1344, which carried much heavier penalties. There appears to be enough law and evidence on the side of this indictment to get it to a jury, but nobody has any illusions that James would have been charged if she had not fired the first shot at Trump.

Democrats made this bed and now must sleep in it. Yet, rather than learn from their mistakes, Trump and his team are insisting that the Democrats make room for them under the same covers