Making lawfare great again

At best, an attempt to chill free speech

The election of Donald Trump signaled an abrupt political shift. Republicans who have spent the last four years bemoaning “lawfare” are suddenly in favor of using the law against political opponents once again. I say “once again” because it was Donald Trump who originally created the concept of lawfare in American politics with his calls to “lock her up” in 2016.

In truth, we’ve seen very little lawfare so far. The Trump-45 DOJ kept its investigation of Hillary Clinton and the Clinton Foundation open until the last days of the Administration even though they never found any grounds for an indictment. In the case of Trump, most of his indictments came long after his allegedly criminal behavior and were attempts to hold him accountable rather than political persecution. Jack Smith wasn’t appointed as special counsel until November 2022, almost two years after Biden took office.

Photo by Tingey Injury Law Firm on Unsplash

The New York case may be an exception to that. From the earliest days of Trump’s first presidency, Attorney General Letitia James mounted what seemed to be a fishing expedition. Similarly, New York District Attorney Alvin Bragg campaigned on holding Trump “accountable by following the facts where they go.”

This doesn’t mean that the New York indictments were trumped up (to coin a phrase). Trump seems to have done what he was accused of and a jury did determine that his actions violated the law, but Trump’s crimes in New York would probably have escaped notice and prosecution if he had not become president.

New York is not the only jurisdiction that mounted a legal fishing expedition, however. What I’ve just described is also a pretty good description of the case against Hunter Biden. Hunter did break the law, but if his father had not been president it is unlikely that Hunter would ever have been investigated with a fine-tooth comb and his crimes discovered, much less prosecuted.

As I was writing this, news came across that President Biden had pardoned Hunter. I fully expected this move before Biden left office. Few fathers would leave their children to serve time in prison if they could avoid it. The pardon may have been politically unwise, but it was not unethical or unlawful. It was a very ordinary use of the president’s pardon power. I’ll also note that Biden let investigations of both Hunter and himself play out without interference.

And let’s not forget the other Republican congressional investigations that did not result in indictments. There were a series of investigations during the Obama Administration such as Fast and Furious, Solyndra, and IRS targeting. These inquiries all turned out to be full of sound and fury but in the end, signified nothing. Even in the IRS targeting scandal, in which the IRS admitted wrongdoing and settled with conservative groups, a 2014 report by the Republican-led House Oversight Committee found no connection to the Obama Administration, and in the end, there was evidence that the IRS also targeted progressive groups.

For decades, investigations have been used by both parties as a way to hamstring presidents. Some of these investigations are rooted in real misbehavior while others are, as I’ve noted before, fishing expeditions.

Now, however, Trump appointees signal that the new Trump Administration may be about to come after political opponents with the full force of the law. During the campaign, Trump frequently talked about prosecuting political opponents ranging from Kamala Harris to Liz Cheney and others down the line as far as poll workers accused of cheating. His appointments to head the Department of Justice and the FBI make it likely that he will follow through on those threats.

Even though Matt Gaetz has withdrawn from consideration, Trump’s second appointment to attorney general, Pam Bondi, may fulfill Trump’s goal of installing a loyal foot soldier who will unquestioningly follow orders in the post. Bondi is a longtime Trump supporter who, as Florida AG, helped to quash an investigation into Trump University and pushed the stolen election lie in 2020.

Even worse, Trump has said that he plans to fire FBI Director Christopher Wray, who Trump himself appointed in 2017 to replace James Comey, and replace him with Kash Patel. Wray is currently serving a 10-year term that should expire after Trump leaves office.

Patel is a Trump loyalist who served as a National Security Council staffer in Trump-45 before being promoted to chief of staff for Acting Secretary of Defense in November 2020. Patel was reportedly critical of Secretary of Defense Mark Esper, who Trump fired days after losing the 2020 election. He was suspected of being a backchannel between Trump and Ukraine as the president pushed that nation for dirt on Hunter Biden.

In the past, Patel has defended Trump’s planned use of military force against George Floyd protesters and has been a strong critic of the DOJ and FBI, especially its intelligence aspects.

Patel has also threatened to “come after” Trump opponents “not just in government but in the media,” saying in 2023, “Yes, we’re going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections – we’re going to come after you.”

Speaking to CNN, former Trump National Security Advisor John Bolton compared Patel to the head of the NKVD, Josef Stalin’s secret police force, and warned, “The Senate should reject this nomination 100-0.”

This might be talk to fire up the base and intimidate the opposition like it was when Trump said he wanted to lock up Hillary Clinton. There’s little doubt that Trump has used the threats as both red meat to the MAGA faithful and an attempt to chill vocal opposition. The silencing of pro-Harris editorials at the Washington Post and Los Angeles Times before the election may be indications that the strategy is bearing fruit.

Or it may be that Trump fully intends to engage in an unprecedented level of lawfare against his political opposition. We won’t know for sure until Trump takes office and his appointees are confirmed, but if I were Liz Cheney, John Bolton, Alexander Vindman, who Elon Musk recently said was “in the pay of Ukrainian oligarchs and has committed treason against the United States,” or any number of people who have been critical of Donald Trump, I’d walk carefully and be prepared to lawyer up at a moment’s notice when they find that Trump’s DOJ is starting fishing expeditions against them.

In the Trump-45 Administration, the president was surrounded by honorable and sensible people who reined in his worst instincts. That won’t be the case this time.

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