Democrats failed utterly in their abuse of the law and now reap the consequences, while Trump imitates their failures, expecting a different result.
W ith the criminal indictment of New York Attorney General (NYAG) Letitia James following upon the indictment of former FBI director James Comey, it should be beyond dispute that the Biden-era lawfare campaign against Donald Trump was both a huge electoral failure and a disaster for American civics. Like the Salem witch trials, the march to the Civil War, Japanese internment, and other dark periods in our history, this whole era will be studied as a form of madness that its inhabitants should have seen as such but could not resist.
Democrats made those choices and are living with the consequences, which were predictable and are now out of their control — just as Trump and his team are now making their own choices, which will have consequences that are predictable and will sooner or later be out of their control. The consequence is a downward spiral that will be hard to stop and will take years to repair.
The Democrats who pursued the lawfare campaign did not even achieve the short-term goals they aimed to obtain as a result. Criminal lawfare didn’t pay. Somehow, seeing that this strategy failed disastrously, Trump has decided to repeat it.
A Ruinous Age of Lawfare
By “Biden-era lawfare against Trump,” I mean six legal proceedings: the four criminal indictments against Trump, the NYAG’s civil case against the Trump Organization, and the lawsuits in various states that attempted to bar Trump from the ballot under the 14th Amendment. Those six major proceedings aimed, collectively, to jail Trump, to prevent voters from having the choice to return him to the presidency, and to destroy his business empire and ensure that the fortune he spent a lifetime building could not be passed on to his children. At this writing, the federal criminal cases have been dropped, one of the state cases has been effectively halted while the other produced no real sentence, the NYAG civil case saw its penalties thrown out on appeal, and the disqualification cases were roundly rejected by the United States Supreme Court.
It would exhaust the reader’s patience to fully rehash here all of the many ways in which these six sets of cases were unprecedented, abusive, legally defective, selectively prosecuted, and otherwise ill-considered. That’s not to say that there were never grounds to charge or sue Trump, or that every argument made in his defense was valid. But every case — even the strongest one, the Mar-a-Lago boxes case — had serious problems. None lived up to the standard for bringing an ordinary criminal case that would have been brought against a nonpolitical figure. The overall effect was to shatter prior norms about the partisan and political abuse of the law, and to infect the whole process so badly that it was impossible to get traction for charges that might have accomplished something if brought in a more carefully drafted and timed fashion.
Just for a sampling of the problems I covered at the time in my own writings:
As I said, this is not even close to being an exhaustive list of how the law and its normal course were distorted in these cases. Andy McCarthy has written at much greater length on the flaws with the NYAG and Manhattan DA cases, especially regarding how they were tried, how the Georgia case was prosecuted, how the Biden White House was involved in the four criminal cases, and why Smith’s appointment was legally improper.
In observing the problems with the six main cases of Biden-era lawfare, I am not talking here about the two Trump impeachments brought during his first term. For the record, I opposed the first impeachment but supported the second. Impeachment is a political rather than legal remedy. It was designed to deal with the specific situation where a president abuses his powers in ways not reachable or clearly addressed by the criminal laws. It is different in both kind and degree from pursuing political ends through the courts: rather than place the fate of the president in the hands of one trial judge or twelve jurors in a single city, the ultimate decision belongs to the senators elected to represent all 50 states of the union.
Nor am I even including the broader picture of legal assaults and investigations that included the January 6 and Stop the Steal prosecutions of Trump allies, the jailing of Peter Navarro for contempt of Congress, the various indictments of Steve Bannon, the tax indictments of the Trump Organization and Allen Weisselberg, the efforts to disbar Trump attorneys, or Trump’s first-term travails such as the Russiagate investigation and prosecutions of Michael Flynn and Roger Stone. Some of those things were justified, and some were not. Their collective effect undoubtedly fed the siege mentality and desire for retribution in kind that now animates Trump and his followers, while encouraging Democrats in believing that they were dealing with a pervasive pattern of lawbreaking that required the blunderbuss application of whatever legal tools could be found to hand.
Ruin and Retribution
The potential consequences of runaway lawfare were widely predicted, and came to pass. Democrats got nothing out of what they did, they suffered immediate political blowback, and now they face personal jeopardy.
First, the cases failed. As noted, several of the charges came apart in the courts due to legal defects in either the charges or how they were brought, and by whom. Defenders of the lawfare strategy will complain that the Supreme Court should have resolved things differently, but in designing their strategy, they should have foreseen that a conservative Supreme Court would be unsympathetic to their arguments. Moreover, it was by no means only the Supreme Court, or only the conservative justices, who rejected these arguments.
Second, the whole thing was an electoral failure. That, too, was a foreseeable possibility. The first Trump impeachment did no favors for congressional Democrats, just as was the case for congressional Republicans after the Clinton impeachment. Trump’s standing in primary polls skyrocketed after he started getting indicted, a rally effect that destroyed any prospect of his being defeated in the Republican primaries. The collapse of the criminal cases after the Bragg trial meant that Trump was not, as planned, trapped in courtrooms all summer and fall of 2024, and he ended up not only being elected again but winning the national popular vote for the first time. While one can debate the impact on that outcome of the lawfare campaign, the fact that Trump was more popular after it than he had ever been before suggests that the American people saw this campaign as an abuse of the law, and reacted accordingly.
Third, it changed Trump’s behavior. This, too, was predictable and predicted. Trump is famously vindictive and also famous for seeing the world in terms of power and leverage rather than rules and norms. In his first term, surrounded by cool-headed Washington veterans and legal professionals such as Jeff Sessions, Bill Barr, and John Durham, Trump declined to go after Mrs. Clinton and took only the most cautious steps to bend prosecutorial powers against his enemies and pursuers. But having been dragged through expensive investigations, booked and mug-shotted, compelled to sit for weeks in a Manhattan courtroom, branded a felon in the most ridiculous of the cases against him, and seen a colossal judgment entered with intent to destroy his family business and fortune, Trump responded the way you would have expected Trump to respond. He talked often on the campaign trail about retribution, and in office, he has meant it.
The fact that Democrats should have seen this all coming doesn’t mean that Trump is right to do it. Democrats will tell you that Trump was already bad, but he has gotten worse. Similarly, Trump defenders will tell you that Democrats have already abused the law to get Republicans, but they can and will get worse. The cycle of abuses inevitably gives each side a longer list of justifications, rationalizations, and excuses for abuse.
Even aside from the flagrantly retributive purpose of bringing these charges, the Comey indictment simply doesn’t satisfy the legal standard for perjury. The James case, at least, appears so far to be legally defensible, and it surely would surmount the standards that James herself applied to the case she brought against Trump. My sympathy for her being hoist by her own petard is very limited. But the case is also penny-ante mortgage fraud of the kind the Justice Department would rarely if ever bring under the mortgage-fraud statute, 18 U.S.C. Section 1014. Yet, rather than being satisfied with that charge, the indictment piles on a truly excessive charge of bank fraud under 18 U.S.C. Section 1344, which carried much heavier penalties. There appears to be enough law and evidence on the side of this indictment to get it to a jury, but nobody has any illusions that James would have been charged if she had not fired the first shot at Trump.
Democrats made this bed and now must sleep in it. Yet, rather than learn from their mistakes, Trump and his team are insisting that the Democrats make room for them under the same covers