The lawfare drama is at its midpoint, not its beginning.
I t turns out that it’s dangerous to use the justice system against your political enemies. Who knew?
The hue and cry about the indictment of James Comey makes it sound as though the day before yesterday it had never occurred to anyone to use indictments to harry a political enemy and take pleasure in his travails.
Apparently, memories are short, or nonexistent, as the multiple indictments of Donald Trump prior to the 2024 election, and a massive civil case, have been memory-holed. Who can recall anything about 2023? It was so long ago, it was practically the Neolithic Age.
The press takes umbrage at Trump’s campaign of retribution, without taking account of what it is that he wants retribution for.
None of this is to defend the cynical, politically motivated, and attenuated Comey indictment, but we’ve seen cynical, politically motivated, and attenuated before.
Trump’s opponents wanted to put a rival political candidate in jail, with nary a prick of conscience. They wanted to financially destroy him. They wanted him to spend the lion’s share of the campaign in court rooms. They weren’t bothered by the timing or the tenuousness of the cases. They’d been shown the man — and they came up with the crimes and a politically convenient timeline for trying them.
As usual, Trump takes precedents established by his predecessors, and extends them further and in a more flagrant way.
Analysis in the media, to the extent that it takes into account the lawfare against Trump at all, focuses on the comparison of Trump’s Justice Department to Biden’s Justice Department, and sure enough, Trump’s conduct is more outlandish. President Biden wasn’t braying on social media for Trump to be nailed to the wall. The DOJ resorted to a special counsel, who, especially in the documents case, had plenty to work with.
But Jack Smith cooked up a January 6 case to try to make Trump pay a legal price for what were political offenses, and blatantly pushed his cases with the impending election in mind. (Also, not incidentally, his appointment was unconstitutional.)
Forgotten is the more consequential and successful handiwork of Alvin Bragg and Letitia James.
The Stormy Daniels case is the mirror image of the Comey case. Other prosecutors took a pass on the Daniels case until a prosecutor with more motivation showed up; the indictment was deliberately foggy; exertions had to be made to avoid a statute of limitations problem; and the Daniels case, like the Comey case, was “as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had starved to death,” as Abraham Lincoln once put it.
Then, there was Letitia James, who picked up on business-fraud allegations that prosecutors including Alvin Bragg had passed on indicting, and pursued them as a civil case. Thanks to a compliant judge, she won a huge victory, and took great relish in the massive, wholly unjustified, half-a-billion-dollar fine imposed on Trump (since tossed by an appeals court).
I don’t recall the media tsk-tsking James for promising to take on Trump during her campaign or for spiking the football over a potentially ruinous financial penalty.
“Mr. Trump’s campaign to imprison, fire or otherwise punish his political foes and use government power to crack down on free speech he does not like has broken norms that stood for generations,” Peter Baker writes in a dispatch for the New York Times.
How does he define “generations”? In fruit-fly terms, it has indeed been generations since the civil trial in the case brought by James ended in January 2024. For the rest of us, that was a year and a half ago and within living memory.
“If the precedent set by Mr. Trump takes hold,” Baker warned, “America may be entering a period when each new administration takes aim at the last one in a cycle of retaliation, a what-goes-around-comes-around pattern more familiar in authoritarian countries than in developed Western democracies.”
Too late! The time for this monitory note was a couple of years ago, when Trump’s pursuers should have heard a chorus telling them if they stretched the law to try to end his campaign, put him jail, bankrupt him, and damage his family, Trump would, if elected, likely be bent on Quentin Tarantino–level acts of revenge.
What we’re hearing now is the equivalent of worry that the Doolittle Raid on Tokyo might create escalating hostilities with Japan, when, obviously, the war was already on.
None of this is good. The justice system should never, as a matter of principle, be used as a partisan cudgel. It is, indeed, likely that Trump’s moves will create an incentive for counter-acts of lawfare when the other side is in power again. But, no matter how much the press wants to pretend otherwise, shots had already been fired.