I n the aftermath of the attempted murder of his rival, President Biden told the nation he wants to “lower the temperature in our politics,” renew the sense that “we are not enemies,” that we are “fellow Americans” who “must stand together.” With former president Trump barely cheating death, and with another American, Corey Comperatore, murdered by the assailant for simply exercising what Biden described as his “freedom to support the candidate of [his] choosing,” the president asked, “How do we go forward from here?”
Beyond urging that we “stand together” despite our disagreements, Biden offered nothing specific. But here’s something: The president could take significant action that would cost him substantially nothing, would drastically improve his standing with the electorate, and would begin to bridge our deep political divide. He could put an end to lawfare.
President Biden should direct his Justice Department to dismiss the Florida and Washington, D.C., cases that Biden DOJ special counsel Jack Smith has brought against former president Trump — the Mar-a-Lago documents and election-interference indictments. And he could urge Governor Kathy Hochul in New York and Governor Brian Kemp in Georgia to take similar actions — either compel, respectively, Manhattan district attorney Alvin Bragg and Fulton County district attorney Fani Willis to drop their cases against the former president, or pardon him if necessary.
Lawfare is the criminalization of policy differences and partisan rivalries. As such, it is another iteration of the same pathology Biden condemned in his Oval Office remarks: the abuse of power that catalyzes political violence.
A stable republic settles its differences in its democratic processes — debates by its elected representatives and fair elections. In an unstable nation, the ruling regime uses its control of prosecutorial power to imprison and harass opponents and dissenters. The objective is not just to suppress but to vilify political opponents — to portray them as treasonous, if not inhuman, and as an existential threat to the society. This is the same abomination that inspires political violence.
Included is lawfare’s inevitable regimen of two-tiered justice. In lawfare, the regime’s enemies are pursued obsessively, even for trivial or manufactured offenses — Bragg’s prosecution of Trump being a perfect example. In a contrast too stark to be missed, lawfare shields the regime’s apparatchiks and allies from serious prosecution even for violent crimes — witness the blind eye turned to rioting and other lawlessness by self-styled racial-justice and pro-Hamas agitators, the blatantly unlawful harassment of Supreme Court justices, and the Biden DOJ’s yearslong effort to shield the Biden family from accountability for influence-peddling.
The practice of two-tiered justice inculcates in the society the lesson that violence — whether against political enemies or in furtherance of regime-favored causes — is rewarded. It breeds ever more violence and instability.
This is not an apologia for Donald Trump’s conduct. Like my NR colleagues, I’ve condemned the former president’s conduct following the 2020 election, for which Trump was impeached and, though acquitted because of the Constitution’s two-thirds supermajority hurdle, was voted guilty by a strong majority of the Senate. Sure, I object on legal grounds to the absurd case brought by Bragg; the inanity of Willis’s charging Trump with RICO as if he were a Mafia don; and the dubious charges brought by Smith, particularly in the election-interference case. But no sensible person excuses — morally, ethically, or politically — the underlying conduct in these episodes.
Smith himself, in having his staff explain to Florida federal judge Aileen Cannon the inapplicability to Trump of the Justice Department’s “60-day rule” (the unwritten admonition against taking overt enforcement action in the two months prior to an election in order to avoid influencing it), argued that there was no downside to proceeding with trial against the former president — even a trial that could occur right before, during, and after the election — because the former president had already been publicly indicted; ergo, everyone in the country already knew about the allegations. Well, yes, that’s exactly the point: Ending lawfare would merely end the partisan exploitation of prosecutorial processes against a political rival; it would not deprive voters of their opportunity to render judgment on Election Day, fully cognizant of the information that raises significant concerns about Trump’s fitness for office.
Along the same lines, far from excusing that conduct, I am appealing to reason.
Just look at the lawfare cases. (I’ll omit the Florida one. It is the strongest, but it raises major questions about equal justice under the law, and I am in the midst of a two-part series addressing it — part 1 is here, part 2 is coming in the next few days.) The Manhattan case involves, at best, trivial business-records chicanery in which no one was defrauded; yet the DA and judge outrageously told the jury that Trump successfully conspired to steal the 2016 election. That, even as Democrats rationalize Smith’s election-interference prosecution by contending that Trump’s 2020 election-denial is intolerable because it delegitimizes our democratic process and encourages political violence.
On that score, in the election-interference case, Smith lacks evidence implicating Trump in the Capitol riot; yet he has written an indictment that would prejudicially tar Trump as ringleader of a violent insurrection — in hopes of convicting him on creative and comparatively trivial fraud, obstruction, and civil-rights charges, an effort that the Supreme Court has effectively halted.
For her part, Willis’s RICO indictment is a fever dream — even if we ignore the DA’s personal, disqualifying misconduct, the charges she filed implicate Trump’s official acts, so he is likely immune. Moreover, the case is so unserious that, even before the proceedings were derailed by Willis’s embarrassing scandal, four defendants were permitted to enter guilty pleas to minor infractions — none of them pled to the overwrought RICO allegation, and none of them will do a minute of jail time despite all the heavy breathing about how they brought our democracy to the brink of ruin.
Which brings me to the practical point President Biden should be considering: By ending lawfare, he would materially improve his standing with the electorate while sacrificing nothing of consequence.
As a political strategy, lawfare is now failing. To the extent Democrats wanted to run against Trump, Phase I of the lawfare gambit was successful: It rallied the GOP base to Trump and prevented other Republican candidates from gaining traction. But lawfare’s anticipatorily decisive Phase II — during which Democrats foresaw an outpouring of unsavory evidence, guilty verdicts, and prison sentences against Trump during the stretch-run of the campaign — has been a counterproductive flop.
Because of Smith’s missteps — the failure to assess the legal complexities of indicting a former president and the overcharging of the Florida case — his prosecutions are in limbo. Willis was late to the fray, and between her analogous failure to appreciate the legal complexities and her disqualification controversy, the Fulton County prosecution is on ice. Inadvertently, these developments pushed Bragg’s ludicrous Manhattan criminal trial against Trump to center stage. Yes, the former president was convicted, but the case was so patently rigged that the prosecution has only improved Trump’s standing with the electorate while discrediting the entire lawfare enterprise.
At this point, lawfare is not only a political loser, it’s a legal nullity. Biden has to realize that there will be no additional convictions of Trump prior to Election Day, and that the guilty verdicts won by Bragg are likely to be vacated. Even if the latter does not happen, it seems impossible to imagine that Judge Juan Merchan would sentence Trump to prison after he was nearly murdered over the weekend. The legal collapse of lawfare is the fallout of the Supreme Court’s late-term rulings in (a) the immunity case, which will require extensive additional pretrial proceedings and appeals, while gutting much of Smith’s and Willis’s cases; (b) the Fischer case, which eviscerates Smith’s attempt to use the violence of the riot as evidence of Trump’s obstruction of Congress; and (c) the Erlinger case (which, as I’ve explained, reaffirms the principle that critical issues in criminal cases must be decided by a unanimous jury).
Lawfare Phase II, then, is already a failure. It is hurting Biden and Democrats, not just with the Trump base and even Trump-skeptical Republicans, but also with fair-minded voters who are alarmed by banana-republic tactics — perceiving the nexus between (1) the erosion of even-handed justice that is basic to the rule of law and (2) the rise in political anger that has now bubbled over into deadly political violence.
Biden can make political hay out of what heretofore has been his partisan abuse of prosecutorial power by appearing to rise above it. If he directs his Justice Department to cease and desist in the federal parts of the lawfare campaign — the Smith prosecutions — he will be giving up nothing. Those cases are going nowhere prior to Election Day. If Trump wins the election, they will be dismissed. But if Biden gets ahead of the curve and orders dismissal of the cases now, the vast majority of the country’s voters will see him in a different, much more positive light.
Similarly, if in furtherance of his Oval Office call for national unity and a lowering of the temperature in our politics, he calls on the states of New York and Georgia to drop their Trump prosecutions, he can only improve his position with the electorate, notwithstanding that the exercise would be cost-free. Those cases are not federal cases. Biden has no authority to force the states to abort the prosecutions. The president would enhance his political stature nationally while leaving state and local officials to make the real decisions about how to proceed.
Would there be squawking from the hard leftists whom Biden has been so fearful of offending throughout his presidency? Sure, but squawking is what they do, and indulging it is why Biden is languishing in the polls.
Doing the right thing by emphatically ending lawfare might not win the president reelection, but it would improve his chances. If he were to win, it might teach him that success in a second term lies in appealing to the decency and reason of ordinary Americans rather than caving to woke progressives. And even if Biden loses in November, ending lawfare would give him a legacy he now lacks as a guardian of the rule of law.
And let’s face it: At some point, Biden is going to pardon his son Hunter. The younger Biden is facing conviction and imprisonment on serious offenses in two felony prosecutions, even as the president stresses that his son has tried mightily to overcome his demons. Everyone can understand a father’s love for his son. But not everyone can excuse a president’s exercise of clemency in favor of his courtiers. That exercise would be a lot easier to swallow — just like the Biden Justice Department’s decision not to prosecute Biden’s own classified-information offenses would be a lot easier to swallow — if the president showed the same solicitude to his political opponent.
Sunday evening, the president said that Americans are not “enemies” of each other — that “we are friends and co-workers, citizens and most importantly fellow Americans,” who are bonded together despite our political differences. It is one thing for Joe Biden to say that. It’s another to prove that he means it. He can do that, cost-free but to great political benefit, by ending lawfare.