The “lawfare” the Democrats employed against Donald Trump in 2023 and 2024 was a substantial, audacious and damaging breach of all previous political principles, a transparent effort to hold power by using the legal system to eliminate the party’s most powerful adversary. I believe the damage to our system is permanent, much as Democrats eliminated impeachment as an important restraint on the Presidency by using it in such a flagrantly partisan manner in two illicit impeachments. Now there is no longer a taboo against a party using partisan prosecutors to find ways to bobble major political figures using the Soviet “show me the man, and I’ll show you the crime” method. Even though the Democrats failed, in part due to bad cases, in part to incompetent prosecutors, and most of all because of the astounding determination and resilience of their target, Donald Trump, this strategy will become standard operating procedure, and our system will be nastier, uglier, and less functional for it.
Gee, thanks Democrats!
Arguably the most outrageous and unethical lawfare assault on Trump was the $500 million civil fraud judgment against him and his family business. This was NY Attorney General Letitia James’ contribution to the Biden campaign, with her claiming that Trump overestimated the value of his properties for the purpose of calculating collateral for loans, though his counter-parties, the banks, said they did not rely upon his figures so Trump’s estimations cost them nothing. Oh: all of the loans were repaid.
Never mind: the idea was to use this contrived civil to cripple Trump financially as well as tarring him as con-artist, and James had an incompetent, Democratic judge, Judge Arthur Engoron, who was eager to help out. Yesterday a New York appeals court tossed the $500 million civil fraud judgment as unconstitutional because it violated the “cruel and unusual punishment” provision in the Bill of Rights.
The reversal was condign justice for James, who campaigned for office by promising to “get Trump” for something. Wait, I’m confused: which party is it again that is an existential threat to democracy?
Jonathan Turley was unusually nasty in his characterization of the case, writing in part,
James could not have succeeded if she had not had a judge willing to ignore reality and cook the books on the fines. She needed a partner in lawfare. She needed Engoron.
Even for some anti-Trump commentators, the judgment was impossible to defend and some acknowledged that they had never seen any case like this one brought in New York.
Judge David Friedman gave Engoron a close-up that would have made Swanson wince. He detailed how the underlying law “has never been used in the way it is being used in this case – namely, to attack successful, private, commercial transactions, negotiated at arm’s length between highly sophisticated parties fully capable of monitoring and defending their own interests.”
He accused Engoron of participating in an effort clearly directed by James as “ending with the derailment of President Trump’s political career and the destruction of his real estate business.”
Other judges said that Engoron’s fine was so off base and engorged that it was an unconstitutional order under the Eighth Amendment, protecting citizens from “cruel and unusual” punishments. So, Engoron not only inflated the figures but shredded the Constitution in his effort to deliver a blow against Trump.
Trump can now appeal the residual parts of the Engoron decision imposing limits on the Trump family doing business in New York. Some of those limits could be moot by the time of any final judgment. Ironically, if Engoron had shown a modicum of restraint, he might have secured a victory. During the trial in New York, I said that he would have been smart to impose a dollar fine and limited injunctive relief. That, however, required a modicum of judicial restraint and judgment.
Instead, Engoron chose to walk down the stairway into infamy. He was off by half a billion dollars, which could put him in the Bernie Madoff class of judges.
The Fulton County prosecution of Trump is dead (you know, Fani Willis) as are the unethical prosecutions by Jack Smith, the special counsel for the U.S. Department of Justice, regarding Trump’s alleged mishandling of classified documents and supposed efforts to overturn the 2020 election. This is the latest shoe from the lawfare centipede to drop. The rest, I think, will fall eventually.
Ethics Alarms 
is there any news on Trump appealing his felony conviction? I haven’t seen anything on that in a while from anywhere.
Now we have John Bolton’s house raided by the FBI, ostensibly looking for classified documents that were illegally removed and kept. Supposedly Bolton could look at 10+ years in prison if the allegations are true, allegations which were allegedly confirmed in Bolton’s memoirs. The Left is decrying this as more political lawfare, but Kash Patel responds to this with a familiar tweet: “No one is above the law.” The whole affair reeks of retribution, even if Bolton is guilty, and it does have me pondering the following.
What is the ethical course of action, once Pandora’s box of political lawfare has been opened? Turning the tables and investigating those who investigated you is going to have the appearance of politically-motivated attacks, no matter how justified the investigation. Choosing not to investigate just emboldens the behavior of your adversaries. Is an appropriate course of action to investigate and prove through the courts that your adversaries were guilty as sin (and often for the same crimes they accused you of committing), and then pardon them after the conviction? Or do you slog through the investigations, throw the book at your enemies, and hope that it so cows them that they won’t dare retaliate with even more vicious and vindictive forms of lawfare in the future?
I will say that I have deep respect for Trump for standing firm in the gale of the combined might of the AUC. A lesser man would have broken under that weight. But then, Trump also had the means to challenge the half-dozen cases raised against him. The lesser man doesn’t have the deep pockets to fight through the courts. I’ve heard podcasts interviewing people who, faced with either beggaring themselves to fight unjust legal accusations or accepting a deal which buys their silence with a promise to stop the legal proceedings, chose the path of silence because they could not bring themselves to take such financial and legal risk. Trump had the means to fight, which is probably what prompted Engoron to slap Trump with the $500 million fine. Trump had to be bled out.
It would be nice if we could get everyone to agree to a legal playbook. “If you have to pass laws extending the statute of limitations in order to prosecute someone, you might be engaged in legal lawfare.” (I suddenly have the voice of Jeff Foxworthy going through my head as I write these.) “If you have to convince the victims of an alleged crime that they were indeed victims no matter what they say, you might be engaged in legal lawfare.” “If you are prosecuting someone when you gave your buddy down the street a pass for the same crime, you might be engaged in legal lawfare.” “If you use a prosecution as an opportunity for vacations and adultery, you might be engaged in legal lawfare.”
My first point is that we cannot have two sets of standards in the USA, one for Republicans and one for Democrats. A two-tier justice system erodes faith in the rule of law. This is in line with the Sermon on the Mount which states in Matthew 7 “Do not judge, or you too will be judged. For in the same way you judge others, you will be judged, and with the measure you use, it will be measured to you. “
My second point is that we may need to apply game theory in order to compel the Democrats to bring back to a collaborative and cooperative approach to doing politics. One of these strategies that enforces mutual cooperation is the tit-for-tat strategy which punishes a player for defection until until that player stops defecting by resuming cooperation.
What we have seen is that since the reelection of Trump in 2024 the Democrats have been doubling down on their negative and hostile strategy. Nothing passes Congress, as the Democrats filibuster everything Trump wants in the Senate, including nominations. Sanctuary cities and states go full confederate on immigration law enforcement. Lower tier federal judges block any executive order and initiative of the Trump administration. Laetitia James has indicated that she seeks appeal to the Court of Appeals. Alvin Bragg has not dropped his case against Donald Trump.
Given this there is absolutely no reason why the Trump administration should not indict political opponents when there is probable cause for criminal wrongdoing. The “nice guy” strategy is based on fear, and has proven to be strategically and politically meritless for the GOP in the last decades. So the Trump administration and the GOP should play hardball and stop being worried about appearances.
Yes, I thought this post deserve the A Man for All Seasons clip about pursuing the devil.
the left needs to understand that, not only is turnabout fair play, it may be the only way to teach them a lesson
-Jut
I mostly agree, but the teaching should be done by the book, and should not be petty “You push me, I push back” when nothing is actually accomplished. Neither should it be knocking down an opponent and kicking him once he’s on the ground. If Republicans are to play the lawfare game, before each prosecution they need to make sure the crime isn’t something they themselves have committed (and if it is, then feed their own perps into the grinder). And they need to make sure it’s something that will actually stick, instead of just making grand juries indict the proverbial ham sandwich and having it go no further.
The decision(s) is/are worth a skim (it’s over 200 pages long, so I’m not going to dig in too deep). There were 3 different written decisions concurring in part. It looks like it was a fractured case where no 3 out of the 5 judges agreed on much, with a result only being accepted to move the appeal process along. 2 agreed with the original decision except for the 8th amendment issue on the monetary damage, 2 had serious disagreements with the decision and suggested a retrial but went along with result so it could be appeals, and 1 thought dismissing the whole case was the better decision.
Note that this means that 3 thought there were significant issues with the case as a whole, not just the excessive fine.
I had just seen an article noting that these judges had been dithering over the case for a solid year now, which is almost unprecedented. I reckon they finally decided that even for Trump, this case was just too far out of bounds.
One additional factor I’ve not seen mentioned, but that further shows how James corrupted the legal procedures: The law she used to charge Trump with fraud was created to be available for prosecuting organized crime schemes where real victims were unable or unwilling to cooperate or come forward for lack of resources, or fear of actual retribution from mobsters. It was never intended to be employed to criminalize a mutually satisfactory financial arrangement between two competent parties.
Engogon has a sketchy background…an ex-hippy musician who sort of lucked his way into a judgeship, and substituted his own inexpert and uninformed opinions and “appraisals” of property valuations in place of expert testimonies in this case.