Lawfare Forever

By Judson Berger

Friday, September 26, 2025

 

The wheels of motivated justice turn quickly.

 

Since this newsletter last checked in on Donald Trump’s thirst for revenge probes and prosecutions, the president has seemingly moved on, for now, from accusing Barack Obama of “treason.” But his desire to use the DOJ to punish political foes has not abated. Not one bit.

 

You can find National Review’s coverage here on last weekend’s social media outburst in which he pressured Attorney General Pam Bondi to go after James Comey, Letitia James, and Adam Schiff — right around the time the top federal prosecutor in a Virginia district was pushed out amid complaints that he wasn’t pursuing a mortgage fraud case against James and a separate case against Comey aggressively enough.

 

Surprise: the wheels turned as soon as a new interim U.S. attorney was in place. By Thursday evening, Comey had been indicted — related to questionable allegations that he gave false testimony about whether he authorized a leak. The move came just days before a statute-of-limitations deadline. The James case also is moving ahead, Bloomberg reports.

 

This doesn’t mean Trump will get his wish. The irony in these developments, as Andy McCarthy writes, is (1) that Trump’s intervention “will make it incalculably harder for the president to get pending and future Justice Department appointees confirmed” and (2) that “by openly demanding prosecutions of Comey, James, and Schiff,” Trump has made it harder to pursue them. That is, judges will “have no compunction about throwing them out on selective-prosecution grounds (and insufficient-evidence grounds . . . and statute-of-limitations grounds . . .).” The Comey case itself should never see a trial court, Andy says, and the indictment should be dismissed “because there is no factual basis” for either the perjury charge or the obstruction charge.

 

Trump’s obsession with vengeance at any cost, using any lever, is an outrage, as NR’s editorial observes. And, as the editorial notes, Democrats helped pave the way here with their own lawfare probes, notably the investigation run by New York State Attorney General James, “who tried to ruin Trump and his family financially with a massive civil fraud case — an abusive prosecution with no fraud victims in which the absurdly astronomical damage award was recently voided by an appellate court.”

 

So the question now is the one Andy keeps raising: Which party will get the message that lawfare is bad for the country and unpopular with voters, and commit to stop doing it? Will either? Will neither?

 

Without de-escalation, there will be only escalation. We can speculate where habitual and retaliatory misuse of the justice system leads, and it has a certain third-world flavor. (In Pakistan, modern history suggests that the title “prime minister” should be joined with “and future inmate,” for the sake of accuracy and expectations setting.) One thing is for sure: this misuse will have unintended consequences and complications.

 

As Axios reports, the DOJ probe of former CIA Director John Brennan over Russiagate — an investigation that already has other problems — is imperiled by Director of National Intelligence Tulsi Gabbard’s withdrawal of security clearances for potential witnesses. Oops. As Andy writes, Trump’s meddling with the U.S. attorney’s office for the Eastern District of Virginia has created new uncertainty over the replacement’s eligibility. Then there’s the reasonable expectation that GOP abuses today beget more Democratic abuses tomorrow. In the latest issue of NR, Andy charts the history of modern lawfare — a story of gradual but persistent escalation — and musters, in spite of this, a note of hope for the future:

 

Challenges are now working their way up the court system. With the Republican Congress too paralyzed to check the president’s overreach — much of it usurping Congress’s own power — it will be up to the judiciary to restore order. The Supreme Court will do its part.

 

Of course, there is a limit to what judges can do. They can decide only the cases that come to them and have no power to enforce their judgments. But if law is still king in America, it is not because of courts. As Alexis de Tocqueville recognized, it is because regard for the law is basic to the American character. The resulting culture cannot be snuffed out by a president’s indifference to it. It will always present an opportunity for new leaders to rise on the promise of restoring the rule of law.