What makes leaders turn to lawfare?
T he sight of FBI men pushing past suburban shrubbery to raid John Bolton’s home raises the old question again: What makes leaders turn to lawfare?
The chemistry of revenge is one answer. The president’s exclamation at the news of the FBI’s probe of his own erstwhile national security adviser — “he’s really sort of a lowlife” — could be characterized as just the last reaction in a long sequence. In the early 1970s, Democrats, including the young attorney Hillary Clinton, waged lawfare against President Richard Nixon, who escaped impeachment only by resigning in shame. Republicans took revenge for Watergate by waging lawfare against President Bill Clinton and First Lady Hillary. Democrats countered with their lawfare against President Trump and his entourage. Whether or not there is merit in the case against Bolton, the president clearly relishes the sight of agents pursuing someone he rates disloyal. And so on, to the shocked visage of Gretchen Bolton at her door.
Less clear is whether there is any value to ruining a political opponent, or where political principle fits in the dynamic.
Why do even principled statesmen — and there are some in this administration, too — not dig in their heels and try to arrest the chain of revenge? Why do even cautious, logical men and women succumb to the passion of lawfare? The most outrageous campaign of lawfare in the history of the Anglosphere, the impeachment and trial of the first governor general of India, Warren Hastings, was mounted by Mr. Incrementalism himself, Edmund Burke. The father of modern conservatism spent nearly a decade of his time in parliament — from 1787 to 1795 — crusading against Hastings, antagonizing allies all around. There were reasons to investigate what was going on in India: Hastings exploited the fact that the East India Company was, at that time, an adjunct of the Crown. That connection between a powerful company and a government — a far more powerful company than, say, Intel — was the trouble, for as Burke would put it, it created “a state in disguise of a merchant.”
Burke chose to prosecute Hastings — and failed. The “wicked wretch,” one of Burke’s slime phrases for Hastings, emerged from the ordeal with a pension, not a conviction. Burke biographer Russell Kirk has argued that the public flaying of Hastings served posterity — in England at least. After Burke’s death, at “every grammar and public school,” the story of Burke and Hastings “impressed upon the boys who would become colonial officers or members of parliament some part of Burke’s sense of duty consecration in the civil social order.” That slowed another chain, the chain of abuse by Britons of Indians. After Burke, England recognized that, as Kirk puts it, she had a “duty to her subject peoples in the East.”
Still, even Kirk’s excellent biography leaves readers wondering: Was Hastings truly the archest of the arch villains, as Burke maintained? And is this the right way to go about it all? A book that Burke penned in the same years that he waged his Hastings war, Reflections on the Revolution in France, influenced a far greater number, and in a greater number of lands, than the Hastings story. Burke might have had the same reach with a Reflections on the Abuses of the East India Company.
All the more welcome then is James Grant’s Friends Until the End, which gives the best-yet account of the chain reaction in Burke’s soul that drove him to weaponize government, what his crusade cost him, and what such crusades may cost all of us.
Grant’s book is double biography. The other friend in the title is Charles Fox, Burke’s aristocratic partner in a remarkable multi-decade alliance in parliament, much of it in the opposition. Their skills as orators, their learned exchanges — the pair’s conversations, as Grant puts it, were the kind where “classical allusions, Latin tags, and lines of English poetry jostle” — built the friendship.
But what truly united Fox and Burke, Grant notes, was what they opposed: not merely the Tories, but “the incursion of royal power on the prerogatives of the House of Commons.” What gave the duo power was their ability to find allies. Fox, as Burke noted, was “born to be loved,” while the genial Burke enchanted nearly all he met, including one of the world’s first female novelists, the discerning Frances Burney. (Burney wrote in a private letter that she was “quite desperately and outrageously in love.”) But it was the pair’s skill in building political alliances — mainly by appealing to the good in men — that mattered. That skill enabled the two to help craft a party so clear in its principles that it might be a model for post-Trump Republicans, the Rockingham Whigs.
For a while, they seemed unstoppable. Who else, Britons asked each other, could so successfully defend the American Revolution? (Fox even donned the colors of George Washington — buff and blue — to signal his personal loyalty to the American cause.) Yet more important, both Fox and Burke publicized the American Revolution not as pure rebellion (as per, say, the musical Hamilton), but for what it was: an action defending the best of Britain’s principles, individual freedom and the rule of law, in the tradition of Britain’s own Revolution of 1688. England had deposed James II and placed the reformers William and Mary on their thrones to that end. If the same England was to “continue to profess our admiration for those who succeeded in those principles in the year 1688,” it must “support American pretensions in adversity,” as Fox argued after the Battle of Long Island in 1776. Burke, for his part, provoked the House of Commons into the introspection necessary to its eventual acceptance of British withdrawal from the Colonies: “I do not know the method of drawing up an indictment against an whole people.”
Still, it is in providing the context for what drives the sanest of men to lawfare is where Grant adds most value. That context starts in the sketch the author provides of the England and Ireland that formed Fox and Burke. This was no Victorian England, where the jester in a Gilbert and Sullivan opera — or even the son of a baron, like Fox — could tease a monarch before the general public with impunity. Cruel laws, enforced unevenly, tied tongues. In that time, the law held that creditors could send debtors who owed them to jail for indefinite periods, a fate the overextended Burke and Fox — Fox’s gambling losses rivaled those of the Prince of Wales — both managed to elude in part because Fox was a nobleman, and Burke a political favorite.
Britain’s oppression of Catholics gave the young Burke, born of a mixed Catholic-Protestant marriage in Dublin, his first, and most memorable, lesson in the abuse of statecraft. Grant catalogs the oppressions of Britain’s colonial rule at the time: “No Catholic could enter the professions, vote, buy land, own a firearm, possess a militarily suitable horse. . . study abroad, or teach school.” A 1698 law prohibited Catholic law clerks from joining the bar, because Catholic solicitors were, as the law put it, “common disturbers of the peace of his Majesty’s subjects.” As Grant notes, “a Catholic congregation might build a church, but then only of wood and only if that eyesore were hidden off the main roads.”
By virtue of being the Protestant in the marriage, Burke’s solicitor father escaped such discrimination, earning enough to send his talented son to Trinity College. There, Burke encountered the writings of Samuel von Pufendorf, an early skeptic of the infallibility of the state who argued, that “every Man ought to promote the Good of another as conveniently as he may.” Then it was off to London, where Burke made his name as a writer and entered parliament. Fortified by such experience and education, Ned, as young Burke was known, managed — with Fox and other allies — to push through legislation abolishing the corrupt Board of Trade and depriving many of sinecures, including historian Edward Gibbon. They legislated with such elegance that even some of their targets responded graciously: Gibbon commented, after the loss of his £750 a year post, that he did not mind because hearing “that diffuse and ingenious orator, Mr. Burke” was worth the price.
Next however came a challenge that deeply frustrated Burke. Scanning the empire’s horizon for a place to commence a model reform, Fox and Burke settled on the East India Company, which abused the some 30 million Indians it oversaw with the same admixture of plunder, condescension, and cruelty familiar to Catholics of Ireland. The pair put their hearts into the Indian reform: Fox promised a “great and glorious” reform to save “many, many millions of souls.” They also put their minds into the project. To track the East India Company, Burke personally purchased sufficient shares to win him rights to attend and vote at quarterly meetings. He steeped himself in knowledge of a land he’d never seen, learning names of “numerous Indian nawabs, rajas, nizams, subahs, sultans, viziers, and begums.”
Such prep work, as Grant points out, enabled the Whigs to identify the correct solution: de-mercantilization. “Separate the company’s two incompatible missions: sovereign rule and moneymaking,” Grant writes. The compromised statute that emerged from House of Commons was not as neat: A seven-man commission would rule India, while a board would govern East India’s commercial operations. But the commercial board would be a subsidiary to the commission. And in marshaling their votes for the measure, the pair still confronted the formidable obstacle of East India shareholders in Britain, furious at the threat to their fortunes that such reform represented. Fox might emancipate Hindus, their opponent William Pitt warned, but he must also “take care that he did not destroy the liberties of Englishmen.”
The king and his allies in any case defeated Fox’s India Bill, as it was known, in the House of Lords. The king, who had that prerogative, booted Fox and Burke from paid posts. In the 1784 general election, Burke held on to his seat in parliament, as did Fox (by a hair), but so many Whigs, now labelled “Fox’s martyrs,” were ousted by voters from parliament that the Whigs’ opponent, Pitt, became prime minister. Burke’s disillusionment ran deep: “I consider the House of Commons as something worse than extinguishd,” he wrote.
It was thus, at the age of 59 and merely an opposition parliamentarian, that Burke risked his high-stakes lawfare. He commenced impeachment proceedings with a four-day anti-Hastings polemic. Of course, Burke universalized his point: The Hastings trial was “not solely whether the prisoner at the bar be found innocent or guilty, but whether millions of mankind shall be made miserable or happy.” And of course he raised the stakes for fellow lawmakers by appealing to their honor: “Faults this nation may have; but God forbid we should pass judgment upon people who framed their laws and institutions prior to our insect origin of yesterday!” The House must join him in impeachment, the Lords convict Hastings.
The House did join him, handing to the Lords charges that Hastings had “desolated the most flourishing provinces,” “pressed, ruined, and destroyed the natives of those provinces,” and violated “the most solemn treaties.” In thousands of hours of speeches before a jury from the House of Lords, the eager prosecutor, Burke, dwelt on Hastings cruelty to the Rohillas, an Afghan tribe from land bordering Nepal. He also charged that Hastings had taken revenge on a crooked tax collector, Nandakumar, for alleging that he — Hastings — had taken a bribe, seeing to it that Nandakumar was convicted and hanged for forgery. Not all of this was proven. And, as the jury of Lords slowly considered the charges, as the months and years passed, Burke found himself more and more isolated. Fox, Burke’s initial ally in the undertaking, faded. By the time the Lords’ jury voted not to convict, eight years on, a full third of their original number had already passed away.
It all cost Burke — and more important, other causes still dear to him — enormously. He was one of the first to recognize the tyranny in the French Revolution. Yet far less of an audience than in the past was ready to hear out the prophet: As Grant notes, “British politics had indeed, by 1789, seemed to pass Burke by.”
His anger sidelined him — as it emerged, for good. Burke died short of cash and disappointed, in part over the death of his son, but in part over the failure of his pursuit of Hastings. He left the old Whig alliance, which might have achieved yet other reforms, in pieces. His friendship with Fox had long since finished. This is perhaps the point of Grant’s title: The pair could have been “Friends Until the End.” But they were not.
Burke’s story as conveyed by the able Grant tells us something about managing midlife ambition. As the number of years ahead shortens, causes seem all the more urgent to us, but not necessarily to others.
Another message for readers of any age is that comity is worth more than we think, and lawfare far less. Many lawmakers are already dreaming of the post-Trump era, and the moment when they can forge new alliances. To understand how hard that task will be, they might start by turning to Grant and Burke.