Misrule of Law

“Lawfare” consists of weaponizing the legal system (civil and criminal) against one’s political opponents. Unlike actual warfare, which is acknowledged to be hellish, lawfare is typically—and falsely–conducted in the name of “justice,” undermining both the truth and the rule of law. Even if the charges fail, the victim often faces financial and reputational ruin. The Kafkaesque process is the punishment.

This article appeared in the August 2024 issue of Chronicles (here). Thanks to Ace of Spades HQ (here)!

Color me naive. As cynical as I thought I was about the state of America’s legal system (and its roiled political climate), I fervently held out hope that even a single juror would vote for President Trump’s acquittal in the circus-like show trial conducted by Judge Juan Merchan in Manhattan—thereby producing a hung jury and mistrial. (In my defense, Chronicles’s legal affairs editor, the estimable Stephen B. Presser, displayed the same naivete in his pre-verdict prognostications.) [June/July issue, “A Prayer for the Defeat of Lawfare”] Alas, my (and Professor Presser’s) hopes were dashed on May 30 when the twelve New York City jurors returned a unanimous guilty verdict on all 34 felony counts, after only nine hours of deliberation, making Trump the first former president ever to be convicted of a crime.

My reaction to this unprecedented verdict was two-fold. Like many Americans, I was shocked that a transparently politically-motivated prosecution targeting the Republican Party’s presumptive nominee in the middle of a presidential campaign—an obvious act of partisan lawfare—could succeed in a nation that exalts the rule of law.  (Imposing an unconstitutional gag order against a presidential candidate during the campaign, as Judge Merchan did, was a tyrannical judge’s dream come true.) My dismay was heightened by a sense of betrayal as I realized that my hope for a hung jury had been based on a Boomer’s nostalgia for more decent and honorable country—one that in 2024 no longer exists, at least in the Big Apple.

The verdict shook my faith in the rule of law. The Rubicon had been crossed; the United States was no longer a country I recognized. This was an ominous revelation. If a billionaire former president, the best-known man in the world, can be railroaded in a rigged kangaroo court farce, we could all be next. I suspect that many Americans shared my shock and outrage, as well they should. The “hush money” verdict—in a case involving (at best) a time-barred record-keeping misdemeanor, transformed by Soros-funded Manhattan District Attorney Alvin Bragg into a bogus felony—should serve as a wake-up call to all freedom-loving Americans. The Gulag beckons.

It was not always this way. I recall President Gerald Ford’s decision to pardon the disgraced former President Richard Nixon in 1974, knowing it would likely doom his prospects for election in 1976, in order to help the nation heal. Ford realized that the spectacle of trying a former president would irreparably damage our shared norms. Ford sought to abate the “ugly passions” and bitter polarization that had been aroused by Watergate. Ford’s magnanimity was reminiscent of the sentiments invoked in President Abraham Lincoln’s Second Inaugural Address, at the close of a horrific Civil War, when he spoke of the need to “bind up the nation’s wounds,” encouraging Americans to act “with malice toward none with charity for all.” We have come a long way since 1865.

Despite my naivete and nostalgia, I am no Pollyanna about the legal system. I practiced law for 30 years in the People’s Republic of California, defending scores of frivolous lawsuits brought by unscrupulous lawyers. My blog is titled Misrule of Law. In the course of decades as a legal writer, I frequently railed against judicial activism, the plundering and sometimes destruction of entire industries by the plaintiff’s bar, the Left’s capture of legal academia and the organized bar (and even the once-conservative legal profession), and, recently, the persecution of President Trump’s lawyers (such as John Eastman) and allies (such as Texas Attorney General Ken Paxton). I saw all the signs. How could I have embarrassingly failed to connect the dots?

As Hemingway suggested, the destruction of national norms, like the onset of bankruptcy, occurs gradually, then suddenly. I had taken notice of the gradual, incremental steps, but got caught flat-footed by the synergistic coup de grace. How did this happen, what does it mean, and what is the solution?

The last time Democrats tried to steal a presidential election through legal maneuvering was in 2000, with the attempt to drag Vice President Al Gore across the finish line by hijacking the recount process in Florida in a dead-heat electoral contest against George W. Bush. Gore’s legal team nearly succeeded. Democrat election lawyers such as Marc Elias have become much more sophisticated—and effective—since the days of arguing over “dimpled chads” on computer punch cards. Consider the 2000 election dispute in Florida a dress rehearsal (or trial run) for more far-reaching schemes. The multi-state, pandemic-enabled legal skullduggery engineered by Elias’s platoon of activist lawyers (and $400 million in “Zuck Bucks” provided by Facebook mogul Mark Zuckerberg) allowed the Democrats to rig the 2020 election in favor of a feeble, unimpressive candidate who campaigned from his basement.

A quarter-century after Gore’s defeat, all the ingredients that led to the fateful Bush v. Gore (2000) decision, in which the U.S. Supreme Court had to wrest control of the presidential election from the heavy-handed pro-Gore apparatchiks on the Florida Supreme Court, still exist on an even greater scale: a cadre of ruthless, power-hungry lawyers willing to cheat and lie to win; the politics of personal destruction and the Big Lie have become standard campaign tactics; gaslighting, propaganda, and misdirection by the “chattering classes” in the media, academia, Hollywood, Big Tech and other elite institutions now controlled by the Left; and a nihilistic, post-modern legal culture in which anything goes in order to reach the desired result. The ends justify the means.

The astonishing willingness of more than 50 former senior intelligence officials to lie about the provenance of Hunter Biden’s incriminating laptop (claiming it was “Russian disinformation”!)—and brazen attempts to suppress it prior to the 2020 election—exemplify the lack of scruples that now characterizes our politics. This didn’t happen overnight.  

Several new factors have emerged since 2000, contributing to our current plight. First, Democrat Party politics have shifted far to the left as generations molded by social media and indoctrinated by woke propaganda in K-12 and college have come of age and now inhabit urban centers and coastal enclaves. The summer of 2020, with the explosion of BLM rioting following the death of George Floyd in Minneapolis, revealed how volatile and unhinged this demographic has become. Urban dwellers vote overwhelmingly progressive. America in 2024 is now a sharply-divided nation: two separate countries—red and blue—uneasily sharing common national borders. As conservative voters increasingly flee mismanaged blue states, the partisan chasm only grows wider and the political silos more entrenched.  

People living in cities such as New York, D.C., and Atlanta, and states like California, hold the values of heartland residents in utter contempt. In these blue strongholds, prosecutors such as Manhattan’s Alvin Bragg and New York Attorney General Letitia James were elected based on their explicit (and unethical) campaign promises to “get” Donald Trump. With an overwhelmingly leftist electorate (D.C. voters favored Biden over Trump by a margin of 92 percent to five percent), and correspondingly leftist judges and prosecutors (such as Fulton County District Attorney Fani Willis), blue cities are an inhospitable venue for conservatives who are sued or charged with crimes. The voters also serve as jurors, after all. This is why most of the lawfare against Republicans is conducted in a handful of blue jurisdictions resembling banana republics—behind enemy lines.

In many jurisdictions, the legal climate for conservatives is as hostile as the Jim Crow south was for blacks or civil rights workers.

Second, beginning with the lawless tenure of Attorney General Eric Holder in the Obama administration, Democrats have discovered that they can get away with maintaining a two-tier system of justice that rewards friends of the regime and punishes its enemies. Thus, J6 protestors are subjected to relentless manhunts and maximal punishment, while BLM and Antifa rioters are treated with kid gloves. Peaceful abortion protesters are arrested and prosecuted, and the FBI investigates Catholics attending Latin mass and parents speaking at school board meetings as domestic terrorists. In contrast, pro-Hamas demonstrators are allowed to block highways and disrupt college campuses with impunity, and unruly crowds are permitted to intimidate Supreme Court justices at their homes in violation of the law. Steve Bannon and Peter Navarro are sentenced to prison for contempt of Congress, while Eric Holder, Lois Lerner, and Merrick Garland defied Congress without consequence. Hillary Clinton gets a pass for campaign finance violations and the mishandling of classified documents while other are prosecuted for less. Et cetera, ad nauseum.

This differential treatment erodes the rule of law—the bedrock principle that laws must be even-handedly enforced. The entrance to the U.S. Supreme Court building bears the words “Equal Justice Under Law.” Democrats routinely make a mockery of the rule of law. With so many laws on the books, most of them extremely vague, an aggressive prosecutor can convince a grand jury (so the expression goes) “to indict a ham sandwich.” Each time our legal norms are distorted in this fashion, the public’s respect for the law is diminished, and the Left’s insatiable quest for power is whetted and emboldened. Unless this is corrected, our republic is in peril.

Third, the Left has developed a fanatical hatred for Donald Trump, so pronounced that the phenomenon  has earned a moniker, TDS. Leftists’ (and RINOs’) hate is not provoked so much by Trump’s personality and temperament as by his blunt embrace of America First policies, such as closing the border, insisting on fair trade, not blindly supporting overseas wars, and appointing true constitutional conservatives to the federal courts. More importantly, Trump takes these issues seriously and—contrary to decades of Uniparty footsie–is willing to fight for them. Liberals seethe at the conservative majority Trump installed on the Supreme Court, and the resulting 2022 decision (Dobbs) that overruled Roe v. Wade. The Deep State despises him because he vows to drain the swamp—and means it. Trump caters to ordinary Americans, whom the Left condemns as a “basket of deplorables,” “irredeemable,” losers who “bitterly cling to guns and religion,” “semi-fascists,” and worse.

Liberals detest Trump because they loathe the voters he represents–you. This explains the intensity of the Uniparty establishment’s efforts to defeat or neutralize Trump—as candidate and President: the fabricated Steele dossier, phony FISA warrants to spy on Trump campaign aide Carter Page, the spurious Russian collusion hoax, two bogus impeachments, the FBI’s discreditedoperation Crossfire Hurricane, the entrapment and persecution of General Michael Flynn, the baseless investigation by Special Counsel Robert Mueller (conducted with the assistance of Javert-like zealots such as Andrew Weissmann), and the farcical spectacle of the House of Representatives’ January 6 committee, vice-chaired by the Trump-hating Liz Cheney, a “Republican” unceremoniously dumped by her Wyoming constituents in a landslide.

Unable to drive Trump from office, in 2020 the Democrats managed to tilt the playing field in “battle ground” states sufficiently for Joe Biden to win. But when Trump refused to acquiesce in the rigged election, and in fact challenged the Democrats’ hijinks and announced he would run again in 2024, the Left tried to destroy him with a gauntlet of lawfare without precedent in America: Two “defamation” lawsuits filed in NYC by E. Jean Carroll regarding an alleged sexual assault that Carroll claims occurred in a Bergdorf Goodman dressing room in 1996 under circumstances suspiciously similar to a 2012 Law and Order episode (on appeal); an absurd civil fraud case filed by Letitia James based alleged misrepresentations made by Trump’s company to obtain real estate loans, even though all the loans were repaid and no bank complained of fraud (on appeal); an election-related RICO case under Georgia law brought in Fulton County by Fani Willis (on hold due to charges on misconduct and conflict of interest on Willis’s part); two federal prosecutions by Special Counsel Jack Smith (appointed by Biden’s AG, Merrick Garland) alleging a conspiracy to overturn the 2020 election and mishandling of presidential records (both on hold for various reasons and unlikely to proceed until after the election); and the outlandish “hush money” case—relating to an alleged encounter in 2006, and based on the testimony of a convicted perjurer–before an unethical, Democrat-donating judge that resulted in a conviction on May 30.

This summary does not include a barrage of vindictive proceedings (criminal charges and disbarment) against Trump’s aides and lawyers, including Rudy Giuliani, John Eastman, Jeffrey Clark, Kenneth Chesebro, Sidney Powell, and Jenna Ellis, and frivolous attempts to keep Trump off the ballot in 2024 based on his purported status as an “insurrectionist.” This onslaught of retaliatory litigation—what Josh Hammer calls “crass thuggery masquerading as a legal proceeding”–is without parallel in U.S. history. The Democrats thought they could overwhelm Trump, make him radioactive, and keep him from running for re-election. They obviously miscalculated. So far, the voters have not abandoned Trump as “damaged goods,” and in fact the multi-state lawfare tactics appear to have backfired—eliciting sympathy and support for Trump. After the verdict, Trump raised a record amount of campaign contributions. His rallies are packed.

Voters see through the politically-motivated lawfare as election interference, which some believe is orchestrated by a poll-challenged Biden. As the Wall Street Journal reported after the verdict: “Thursday’s jury verdict could also prove to be the last straw for many Americans who believe that Trump has been targeted for prosecution to stop his presidential campaign and his ‘Make America Great Again’ movement, setting a dangerous precedent of using the criminal-justice system for political ends. That could reanimate the voters that swept him into office in 2016.”

Trump’s opponents are desperate to stop him because they do not want to relinquish the power they have corruptly accumulated for decades under Uniparty rule in Washington, D.C. Trump stands in their way, so they are trying to destroy him. If they succeed, Trump’s supporters will be helpless prey. Gleeful Democrats want to see Donald Trump behind bars, like a Soviet-style Gulag. Unless they are stopped, Democrats may resort to similar measures against their political opponents, including ordinary citizens who are perceived as noncompliant “dissidents.” We must never let this happen in America.  

Trump’s legal team will appeal all the unfavorable rulings, which are riddled with glaring flaws. At the risk of repeating my display of naivete, I am hopeful that the appellate courts in New York and Georgia, the federal appellate courts, and the U.S. Supreme Court (which is considering the scope of presidential immunity) will eventually rectify the numerous—egregious—errors committed by the partisan prosecutors and judges. The Supreme Court has already thrown out Colorado’s attempt to exclude Trump from the ballot, and more appeals are possible as the shameless lawfare continues. The torrent of concocted charges against Trump represents an appalling stain on our legal system.

Despite being relentlessly pummeled, President Trump is not beaten. He resolutely fights on, and so must we. We cannot allow ourselves to “go wobbly,” in the words of the Iron Lady. Don’t despair, fight back. The only verdict that matters will be rendered on November 5. What Americans need to understand about Trump’s fake “ham sandwich” conviction is that it means the “cold” civil war brewing since at least 2016 has turned hot. Hostilities have commenced. The New York verdict was both a travesty of justice and a clarion call to action. Patriots must respond with alacrity. It was not a Pearl Harbor moment, since the enemies have been operating in plain sight, not by stealth. Rather, it is akin to the “shot heard ‘round the world” at Concord, or a Sputnik or Cuban Missile Crisis moment—when we realized that the enemy had achieved the ability to inflict mortal damage, and was willing to do so. It is time for patriotic Americans to reclaim their country, and restore the rule of law.

Republican elected officials must not only enter the fray, they must abandon the gentlemanly Marquess of Queensberry rules they typically use (if they fight at all), and recognize that we are in a vicious cage fight. The other side is ruthless and flouts the rules. To prevail, we must reciprocate. The survival of our democratic institutions is at stake.

When, decades ago, I wrote about the Democrats’ attempt to steal the presidential election in 2000, I ended with these words: “The public must remember what it feels like to engage in combat with a remorseless enemy, because the fight has just begun.” Sadly, the enemy has become more formidable in the intervening 24 years. Winning the fight means ensuring Donald Trump is re-elected in November. All patriots should unite to support Trump. This is the most important election in your lifetime. To tame lawfare, MAGA supporters must regain control through politics. Get engaged, now. Register to vote, vote, encourage your friends and family to vote, donate to Trump’s campaign, put a sign in your yard, volunteer.

Make the rule of law great again.