How Do We Stop This Lawfare?

Lawfare: “The use of legal systems and institutions to damage or delegitimize an opponent, or to deter an individual’s usage of their legal rights.”

Since they infiltrated our legal institutions, lawfare has become the preferred tactic of the radicals infesting the Democrat party, and they just checked off the top item on their bucket list. They tried Donald Trump using a screwy legal theory – that an action in 2017 enabled a crime in 2016 – and managed to get a conviction by denying his legal rights.

Let’s take a look at this bit of legal theater which the Dems just performed. A politically compromised DA, Alvin Bragg, charged a candidate for President with conspiracy, without disclosing what the underlying crime was. He then shopped around for a friendly judge and found the politically compromised Juan Merchan.

Merchan then ensured a “fair trial” by denying Trump’s freedom of speech with a gag order, and denying due process by

• Allowing the trial to proceed without informing the defendant of the charges – the underlying crime which elevated misdemeanor bookkeeping errors to felony conspiracy counts,
• Refusing to allow the defendant to call expert witnesses – which would have stated that what was done wasn’t a crime, and
• Informing the jury that unanimity about all elements of the crime wasn’t necessary to determine guilt – which is counter to the Constitution and Supreme Court precedent.

Bragg and Merchan violated the Constitution by deterring Donald Trump from exercising his legal rights. Pretty much everyone except the “fundamental transformation” commies and their Ivy League useful idiots agree that using the law to undermine the Constitution is kind of a bad thing. Unfortunately, we haven’t reached consensus on what to do about it. The proposals range from “run screaming from the bullies” to “Let’s pose as the adults in the room” and hope the commies follow our example.

The Heartland Institute has a proposal at RedState which I’ll call the “appeasement” proposal. They suggest that we need to create oversight (presumably by the government) to move politically charged trials out of politically biased jurisdictions. When any jurisdiction can’t be trusted to justly apply the law, the Institute thinks we should run from that territory, and give them a safe space to behave as they wish. Biden is particularly fond of this strategy for Middle East peace.

But the institute failed to notice that we already have a mechanism to remove trials from locations in which it is impossible for the defendant to get a fair trial– judges. And judges have many layers of oversight to ensure they do their jobs appropriately (appellate courts, state supreme courts, and the U.S. Supreme Court). The Institute doesn’t explain how adding more layers of oversight, would make a system which isn’t working, work better.

But there is a much more important question than how we level the playing field for politically charged trials. How do we ensure freedom from malicious lawfare for everyone? Doesn’t the lady singing hymns outside an abortion clinic deserve the same legal protections as Donald Trump? If we only fix the problem relative to “politically charged” trials, wouldn’t the government be denying protection to those whom it is charging for protection – via taxes?

John Hinderaker has a proposal on Powerline which I’ll call the “berserker” tactic. Respond to being wronged with unrestrained anger and aggression. He suggests a full retaliatory strike against the entire Democrat party.

Republican attorneys general and district attorneys should bring criminal charges against Democratic officeholders wherever possible. No Democratic officeholder should be allowed to retire, in any jurisdiction with Republican law enforcement, without facing criminal charges.

There is considerable logic to his proposal. From a game theory perspective, one cannot allow and opponent to break the rules (i.e. legal precedents and political norms) and go unpunished. Unless miscreants face consequences, they will be emboldened for future misbehavior. This has been proven by the Manhattan kangaroo court. Radicals who have used the law as a political weapon since the administration of Barack Obama have faced no consequences and been emboldened – to the point of using the law to attempt one party rule.

But unrestricted warfare comes with a very high price. After the winner is determined (and it may not be our preferred winner), there will be many broken pieces needing repair to reestablish a functional criminal justice system.

J.R. Dunn of American Thinker is concerned about “tit for tat” endless escalation. He proposes what I’ll call the “virtue signaler” tactic. In response to proposals to prosecute Democrats, Dunn wrote:

The problem with this is that it would simply institutionalize the practice of lawfare, with each side turning the new legal weaponry on the other every time a new administration came into office. What we need to do is to ban lawfare outright.

Dunn suggests that we take something which is already illegal (but not enforced) – lawfare by government officials – and make it more illegal (but still not enforced) to show the criminals we really mean it this time. His proposal has the same logic as proposing more gun laws, to make killing people with guns illegal – and just as likely to be effective.

In addition, Dunn’s proposal – banning lawfare outright – has already been done. The law is called “Deprivation of rights under color of law” (18 U.S.C. § 242). It states

This provision makes it a crime for someone acting under color of law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States …

Defendants act under color of law when they wield power vested by a government entity.

“Color of law” is a term of art meaning “under credentials of authority.” It is a crime for any government official to use the power of their office to deprive a defendant of their legally protected rights – which happens to be the objective of lawfare.

We don’t need to make lawfare illegal. It already is – when committed by government officials. We need practitioners of lawfare to face consequences. That’s a novel idea – no?

A recognition that we’d still like to have a functional republic at the end of the day is missing from the Hinderaker proposal; and any notion of consequences is missing from the Heartland Institute and J.R. Dunn proposals.

I’d like to propose a modest alternative, which I’ll call the “equal justice under law” proposal. It goes like this: Enforce the damn laws that are already on the books!

We need to re-elect Donald Trump as a stern message that we’re not on board with the left’s attempt at one party rule. Then the Donald needs to appoint a special counsel to enforce the law (like, oh say … Kash Patel). His mission should be to investigate and prosecute violations of Constitutionally protected rights by government officials. He should then apply the law to

• FBI officials who violated freedom of speech by using social media as censorship tools,
• Prosecutors and judges who violated due process by willfully conducting sham trials,
• Former administration officials who violated the oversight rights of Congress by defying subpoenas,
• Etc., etc., etc.

When Kash deposes Juan Merchan, I know what Juan is going to say: Judges have absolute immunity! Baloney. Officers of the court have absolute immunity because officers of the court claim they have absolute immunity. Neither the Constitution nor any legislation grants them that immunity. Just to clarify the limits of any claim of immunity, 18 U.S.C. § 242 clearly states

Those prosecuted under the statute typically include police officers, sheriff’s deputies, and prison guards. However other government actors, such as judges, district attorneys, other public officials, and public school employees can also act under color of law and can be prosecuted under this statute.

The law supersedes any presumption of judicial immunity.

If the special counsel finds that any prosecutor or judge has violated a defendant’s rights, he should indict them and let them argue their immunity case. Then the Supreme Court can decide if “nobody is above the law.”

When Juan Merchan’s mugshot runs on the front page of the daily paper, under the headline “Convicted,” I predict that lawfare in America will come to an abrupt stop – without burning the system down in the process.

Author Bio: John Green is a retired engineer and political refugee from Minnesota, now residing in Idaho. He spent his career designing complex defense systems, developing high performance organizations, and doing corporate strategic planning. He can be reached at greenjeg@gmail.com.

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