The Wages of Lawfare

Can America exit the highway to Bananastan?

The trial is over. The verdict is in. The inevitable reversal on appeal will not come until after the election, which this year falls, with stunning aptness, on Guy Fawkes Day.

The 20-somethings who write Biden-Harris campaign emails probably don’t know what irony is, but, like Molière’s M. Jourdain who had spoken prose all his life without knowing it, they speak irony fluently. Late last evening, they sent me a blast decrying Donald Trump’s fund raising (no, I have no idea why they deplete the universe’s precious stock of pixels by emailing me):

That’s money he will use to try to get back into the White House to carry out his threats of revenge and retribution against his political opponents. [italics in original; boldface mine]

During the 2016 Presidential campaign, one may recall, candidate Trump led chants of “Lock her up!” directed at his opponent. There was a genuine case against her. She had egregiously mishandled classified information by sending and receiving it through a private, insecure server and then obstructed investigators by wiping all the data. Yet after Donald Trump took office as President, Hillary Clinton was not indicted. The Trump Justice Department didn’t even revive the investigation of her conduct. Instead, it appointed a special counsel to investigate Donald Trump and raised no objection when he filled his staff with left-wing partisans. After the investigation made it obvious that allegations of collusion between Trump and Vladimir Putin were products of the Clinton campaign rather than the Kremlin, the Trump DOJ did appoint another special counsel, who brought a pair of weak obstruction of justice cases against secondary actors, lost at trial and faded away. We have a record of how Donald Trump carries out revenge and retribution. It is even feebler than his attempts to “Build the Wall”.

But perhaps some in the Biden circle fear that the Administration’s multiple assaults on Donald Trump have been provocative enough to awaken the beast. They have mounted a sleeping tiger, have poked and prodded it, and now have no way to climb off. They certainly could get the idea that losing the election will make them the targets of “third-world-like tit-for-tat vendettas”. As Fred Bauer observes on the City Journal web site –

In an escalatory spiral, urgency is usually a conspirator against good sense: because the stakes are so high, just this time we should act heedlessly, without paying attention to the consequences. The whirlwind awaits. [italics in original]

More than a few conservative commentators now intimate that there is no alternative to embracing the whirlwind. John Hinderaker, who strongly opposed renominating Trump, had this first reaction to the verdict:

What to do now? First, it is now absolutely essential that Trump be elected president. The Democrats cannot be allowed to get away with this effort to turn America into a banana republic.

Second, the Democrats understand nothing except the raw exercise of power. Therefore, Republican attorneys general and district attorneys should bring criminal charges against Democratic officeholders wherever possible. No Democratic officeholder should be allowed to retire, in any jurisdiction with Republican law enforcement, without facing criminal charges. There can’t be a single Democratic official in America against whom a criminal case can’t be brought that is better than this case against Trump. It should be open season on Democrats in the criminal courts.

Third, the criminal prosecutions should begin with Joe Biden. Unlike Trump, Biden is actually a criminal. He is already known to be guilty under the federal bribery statute, to the tune of at least $20 million. If Trump wins in November, his Department of Justice should immediately indict Biden, and Biden should be hounded until the day he dies or goes to prison, whichever happens first.

And here is John Yoo, a sober-minded law professor:

Repairing this breach of constitutional norms will require Republicans to follow the age-old maxim: Do unto others as they have done unto you. In order to prevent the case against Trump from assuming a permanent place in the American political system, Republicans will have to bring charges against Democratic officers, even presidents. A Republican DA will have to charge Hunter Biden for fraud or corruption for taking money from foreign governments. Another Republican DA will have to investigate Joe Biden for influence-peddling at the behest of a son who received payoffs from abroad. Only retaliation in kind can produce the deterrence necessary to enforce a political version of mutual assured destruction; without the threat of prosecution of their own leaders, Democrats will continue to charge future Republican presidents without restraint. . . .

Left uncorrected, the Trump trials will only encourage prosecutors throughout the criminal-justice system to persecute public enemies, real and imagined, rather than choose suspects based on the most harmful crimes committed. Leaders of both parties once exercised the statesmanship, or at least showed the good judgment, necessary to restrain prosecutors from charging past presidents. This quality is now all too rare, if not utterly absent, in the Biden administration, which could have not only left the Trump question to the ballot box but also persuaded Bragg and Georgia’s Fulton County DA Fani Willis to stand down. Instead, we must rely on Republicans to threaten an escalation of banana-republic politics in order to prevent actually becoming a banana republic.

I won’t bother quoting the battalion of Internet hotheads who have said the same thing in fiercer tones.

There is a flaw in this “tit-for-tat” reasoning. It is based on an analogy to war, that is, to real war where men shoot and stab and bomb each other. There each antagonist relies on its own power. Each decides whether it will retaliate and has control of the instruments of retaliation. Neither depends the cooperation of neutrals.

Lawfare is different. It is effective only when conducted within a legitimate legal framework. Convicting a Donald Trump or a Joe Biden requires the cooperation of people who aren’t part of the antagonistic factions. To take the example nearest at hand, Donald Trump will remain a “convicted felon” only if a series of judges, leading ultimately to the United States Supreme Court, endorse the rickety (to put it mildly) case against him. And his “felon” status will affect the outcome of this year’s election only if people who would otherwise have voted for him believe that his trial and conviction were an exercise of due process.

Similarly, GOP retaliation would have to convince judges and jurors who don’t feel strong partisan passions or whose passions run the opposite way that they ought to disregard the rule of law. To take a concrete instance, a Democratic congressman from New Mexico was arrested last March in Texas on a warrant issued in 2008 after he failed to appear in court to answer charges of driving without a license, driving without insurance and running a traffic light. After his arrest, he pleaded no contest, posted bond and, according to his spokesman, has paid the fines for his violations. A Bragg-like prosecutor could inflate this incident into a violation of 18 U.S.C. §1073, “Flight to avoid prosecution or giving testimony”. Does anyone imagine for a moment that the congressman would be convicted or, if he were, that the conviction would survive appeal, no matter how “red” the Texas courts may be?

Yes, it is probably true, given the plethora of offenses on the statute books, that “There can’t be a single Democratic official in America against whom a criminal case can’t be brought that is better than this case against Trump.” It is definitely true, however, that there are no right-wing Manhattans where those cases could get as far as a trial, much less a conviction.

The strategy of indicting Democrats for artificially constructed “crimes” would meet the same fate as the efforts of the International Criminal Court and the International Court of Justice, two illegitimate pseudo-courts, to punish Israel for defending itself against Hamas. No, it wouldn’t reach even that level of effectiveness. Israeli officials could be arrested in some unsympathetic foreign country. No U.S. jurisdiction is going to extradite anyone to answer facially spurious charges unless we abandon the Fifth and Sixth Amendments.

Does that mean that nothing can or should be done? No. It means that adopting the Democrats’ tactics won’t do anything but further embitter our political life. We live in a country that is not, except at the fringes, embroiled in civil-war-like conflicts. We have tools for reining in the excesses of lawfare and making its perpetrators pay its wages. Ultimately, this is a political dispute, pitting adherence to Constitutional norms against arbitrary government. It shouldn’t be confused with a military campaign.

Criticism of Alvin Bragg’s prosecutorial tactics and Judge Merchan’s conduct of the trial extends beyond MAGA enthusiasts. CNN senior legal analyst Elie Honig, author of a book claiming that Trump appointee William Barr was “the most corrupt attorney general in modern U.S. history”, had this evaluation of the Trump verdict:

The charges against Trump are obscure, and nearly entirely unprecedented. In fact, no state prosecutor – in New York, or Wyoming, or anywhere – has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge.

Standing alone, falsification charges would have been mere misdemeanors under New York law, which posed two problems for the DA. First, nobody cares about a misdemeanor, and it would be laughable to bring the first-ever charge against a former president for a trifling offense that falls within the same technical criminal classification as shoplifting a Snapple and a bag of Cheetos from a bodega. Second, the statute of limitations on a misdemeanor – two years – likely has long expired on Trump’s conduct, which dates to 2016 and 2017.

So, to inflate the charges up to the lowest-level felony (Class E, on a scale of Class A through E) – and to electroshock them back to life within the longer felony statute of limitations – the DA alleged that the falsification of business records was committed “with intent to commit another crime.” Here, according to prosecutors, the “another crime” is a New York State election-law violation, which in turn incorporates three separate “unlawful means”: federal campaign crimes, tax crimes, and falsification of still more documents. Inexcusably, the DA refused to specify what those unlawful means actually were – and the judge declined to force them to pony up – until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial. (This, folks, is what indictments are for.)

In these key respects, the charges against Trump aren’t just unusual. They’re bespoke, seemingly crafted individually for the former president and nobody else. . . .

“No man is above the law.” It’s become cliché, but it’s an important point, and it’s worth pausing to reflect on the importance of this core principle. But it’s also meaningless pablum if we unquestioningly tolerate (or worse, celebrate) deviations from ordinary process and principle to get there. The jury’s word is indeed sacrosanct, as I learned long ago. But it can’t fix everything that preceded it. Here, prosecutors got their man, for now at least – but they also contorted the law in an unprecedented manner in their quest to snare their prey. [links, which are numerous and informative, omitted; RTWT]

In light of the patent and severe “deviations from ordinary process and principle”, the right course of action would be for the Governor of New York to short circuit the charade by pardoning the defendant. She needn’t declare that he is an innocent man, just one who has been unjustly convicted. She would pardon a mugger who was railroaded this way. Why not a political opponent who committed a nonviolent misdemeanor? She should be asked that over and over again. [Addendum: One Democratic Congressman has called for a pardon.]

In fact, all Democratic candidates should be asked whether they approve of singling out “bad people” and fashioning “bespoke indictments” to nail them. Do they endorse the apothegm of a 1930’s president of Peru: “For my friends, everything; for my enemies, the law”? Or the antique Scottish maxim, “Show me the man, and I will show you the law”?

Democrats should also be asked whether the conduct of Alvin Bragg and his fellow prosecutors – misleading the jurors about the law, introducing irrelevant and prejudicial testimony, failing to apprise the accused of the charges against him, repeatedly invoking Michael Cohen’s guilty plea to election law violations notwithstanding that it was not admissible evidence, etc. – was consistent with legal ethics. The same might be asked about a judge who, among other faults, violated the New York State rule prohibiting judges from “making a contribution to a political organization or candidate”, ignored the deficiencies in the indictment, allowed irrelevant and incompetent evidence to be placed before the jury and refused to let the jury hear evidence about the federal election law that the defendant allegedly violated. Lawyers who represented Donald Trump in the controversies over the 2020 election have been hounded with ethics complaints and in some cases disbarred for advancing strained and implausible legal theories in their role as advocates. Is it not considerably worse for prosecutors and judges to apply clearly erroneous legal fantasies when their first duty isn’t to advocate a cause but to secure a just result?

Donald Trump should stop treating his conviction as simply a personal grievance. If I were advising him (and if he were listening to advice, far from a sure thing), he would express confidence that the American legal system will ultimately vindicate him and would go on to say that men and women with fewer resources than his may not be able to endure the lengthy process of appealing an improper conviction. He would pledge to clean up the excesses of federal prosecutors and work with state governments to do the same at their level, with the goal of restoring the principles set forth in Justice Robert H. Jackson’s classic speech on the role of the federal prosecutor. The first (and, I suspect, only) Presidential debate is 27 days away. Questions about the Bragg trial are inevitable. That will be Trump’s best opportunity to show why more is at stake than his personal interests.

He may or may not seize that opportunity, but what matters most isn’t the effect on his campaign. If the sanctity of the rule of law is restored, the country will be able to weather a term of either of the unsatisfactory Presidential choices. If we instead descend into a cycle of escalating lawfare, no President or Congress or Supreme Court will be able to end it within the lifetimes of most of those now living.