We Must Employ Lawfare to Stop Lawfare!

By Andrew C. McCarthy

Sunday, February 16, 2025

 

This is the third of seven posts on Attorney General Pam Bondi’s “Weaponization Working Group.” (Here are the first and second posts.)

 

In context, the title of the working group is Orwellian. We’ve learned too well that the defining characteristic of weaponized law enforcement is its targeting of a person rather than a crime. Yet that’s exactly what Bondi’s directive does, targeting by name Democratic prosecutors who went after Bondi’s boss; from there, the basis for investigating DOJ and FBI personnel will be guilt by association — not necessarily in any specific act of misconduct but in taking direction from or assisting the named prosecutors.

 

The way law enforcement is supposed to work: (a) A crime gets committed, (b) it gets run down by the investigators (primarily the FBI in federal law), (c) the evidence they uncover leads to suspicion of a person, and then (d) the person gets prosecuted because of the evidence.

 

In lawfare, by contrast, the chief prosecutor first targets a person, not a crime. Subordinate prosecutors and investigators then peruse the statute books and regulatory codes in search of a potential crime. In that endeavor, they are encouraged to be creative, which isn’t hard given the nigh infinite possibilities. Indeed, in his recent, co-authored book, Over Ruled: The Human Toll of Too Much Law, Justice Neil Gorsuch noted credible estimates that “at least 300,000 federal agency regulations carry criminal sanctions today.”

 

The prosecutors and investigators thus select crimes (sometimes dozens of them) to be investigated. This puts the targeted person to the expense, anxiety, and ignominy of criminal suspicion. That’s what lawfare warriors intend — they are looking to use the investigative process to ruin the target, regardless of whether the target is ultimately indicted. Finally, if the prosecutors and investigators are confident that the bench and jury pool in the jurisdiction they’ve chosen are sufficiently predisposed against the target that guilty verdicts are likely, they indict the case.

 

This is why lawfare has renewed interest in Stalin’s secret police chief, Lavrentiy Beria, who is said to have quipped, “Show me the man and I’ll show you the crime.” Lawfare isn’t law enforcement. It is legal-process bunting on “the politics of personal destruction” — a phrase minted by the administration of President Bill Clinton, who was the chief practitioner, even as he posed as the victim.

 

As we’ve seen, lawfare works in the civil context, too: The party in power exploits its civil enforcement powers, targeting political adversaries under the guise of seeking various forms of legal relief for dubious harms. It’s ironic, then, that a master practitioner of civil lawfare, New York Attorney General Letitia James, will now use AG Bondi’s weaponization directive to accuse Trump and his Justice Department of doing what James herself does.

 

Specifically, as we discussed in the first post, James will claim that the Trump Justice Department’s civil action against her and New York State is not really about immigration law. That, she’ll maintain, is just a pretext for the Trump DOJ’s true objective: to seek retribution over what Bondi conclusorily condemns in the weaponization memo as James’s “target[ing of] President Trump, his family, and his businesses” in a civil lawsuit — one whose nearly half-billion-dollar judgment Trump is currently appealing even as his Justice Department is now suing James.

 

A careful Justice Department would have taken pains to craft a record that its civil action against New York State for obstructing federal law enforcement is wholly unrelated to James’s preposterous lawsuit (a fraud case with no fraud victims) against Trump. The DOJ might even have resisted the urge to name James as a defendant, since doing so was unnecessary to bringing the suit against the state. (James is a top policy official, so the feds could have introduced her anti-enforcement actions as evidence against the state regardless of whether she was named as a defendant.)

 

The Trump Justice Department, by contrast, first issued a political condemnation of James in a statement there was no need for AG Bondi to make . . . and then sued James just a few days later. And the DOJ did so while simultaneously taking disciplinary actions against federal prosecutors and FBI agents who had investigated and filed indictments against Trump — which obviously reinforces the logic that Trump’s DOJ is in the vendetta business, not the justice business, as James and other Democrats will gleefully argue.

 

If AG Bondi ever wondered whether her weaponization directive would itself be turned into a weapon for James, she might have consulted the trio of Trump defense lawyers who’ve been named to top DOJ positions. Todd Blanche, John Sauer, and Emil Bove would likely have explained to the AG that in lawfare, a defense lawyer’s best friend is documentary evidence of the government’s partisan political motives. The danger of politicized targeting was a factor in convincing the Supreme Court to effectively gut the Biden Justice Department’s 2020 election-interference case against Trump. (To be sure, as we’ve illustrated in the prior posts, Bove appears to have taken all the wrong lessons from Democratic lawfare.)

 

Even when the federal government has valid claims, lawsuits against sovereign states over their exercises of discretion in addressing federal enforcement priorities are not easy to win. Unforced errors make the task even tougher. Central to lawfare is naming the targeted adversaries rather than first building a compelling case that they’ve committed criminal or civil wrongs. If you’re posing as the scourge of “weaponization,” naming names is an unforced error.