America in the Shadow of Lawfare
The use of litigation to demolish democracy is the new Democrat playbook.
The relentless criminal and civil prosecution of former president Donald Trump is an unprecedented weaponization of our legal system to attack a political opponent. The goal is to re-elect Joe Biden by any means, without regard to the rule of law Democrat prosecutors and officials pretend to be enforcing.
Beyond E. Jean Carroll’s so far successful defamation cases funded by billionaire Reid Hoffman, and failed efforts in 36 states to take Trump off the ballot for purportedly engaging in insurrection, Trump is a defendant in five active criminal or civil actions, and an unindicted co-conspirator in two additional criminal cases, all brought by partisan progressive Democrat prosecutors seeking hundreds of millions of dollars of fines and more than 100 years of prison time. The timing of these cases was coordinated to inflict maximum inconvenience and cost on Trump, and to make it impossible for him to campaign actively. State and federal prosecutors met in the White House to refine their cases and for purposes that have never been disclosed.
No sitting or former president of the United States has ever before been indicted, let alone faced a coordinated, multi-layered legal attack. That is not because Trump is the only president ever to have walked up to the line, or perhaps crossed it.
Trump-haters see his questioning of the 2020 election results as a watershed event in U.S. history, and his malapropisms and hyperbole as evil. They are willfully blind to Biden’s corruption and disregard of the Constitution, Bill Clinton’s transgressions, and the parallels to House Democrats who objected to certification of Republican electors when Republicans won the presidency in 2001, 2005, and 2017; continued speculation about hacked voting machines in Ohio in 2004 that allegedly swung the state for George W. Bush; to Hilary Clinton’s repeated assertion that she is the rightful winner of the 2016 election, or Al Gore’s novel theories in 2000.
The media embraced Stacey Abrams’ repeated false claim that she had actually won the 2018 race for governor of Georgia, despite Republican Brian Kemp’s nearly 55,000 vote margin. Abrams falsely asserted that voting machines switched votes and that Republicans had suppressed black votes. Her PAC filed a lawsuit that was dismissed for failing to state a claim.
With a pretext of righteous indignation, powerful Democrats are using a massive censorship enterprise, and weaponization of all levers of government to threaten Trump’s finances and liberty, and the rights of tens of millions of Americans to select a president at the ballot box.
The overarching strategy is to bog down Trump with continuous legal battles, thereby requiring his daily presence in court and with his lawyers, impeding his availability to campaign, draining his financial resources, and eroding his support among independent voters. Legal actions that could have been initiated far sooner were delayed so the process would interfere with the presidential election.
Both Letitia James and Alvin Bragg ran for their offices (New York State attorney general, and New York County district attorney, respectively) on the promise that they would take Trump down. Federal Special prosecutor Jack Smith insists the federal trials must happen immediately, and almost concurrently, even though the right to a speedy trial is the defendant’s right to ensure due process, not the government’s right to ramrod a conviction.
New York Judge Arthur Engoron found Trump liable for fraud and ordered him to pay more than $450 million, even though there were no victims and no damages. At one point during the trial, he said he wasn’t interested in what Trump had to say. James salivated in multiple tweets at the prospect that Trump would be unable to pay the judgement or post a bond, and took the first steps toward foreclosure proceedings. When an appeals court reduced Trump’s bond to $175 million, James took the highly unusual step of challenging his bonding company. She asked Engoron to throw out the bond and give Trump just five days to replace it. That was too far even for Engoron, who rejected the effort.
In extraordinary complaints and even more extraordinary decisions, progressives have indicted, fined and disbarred Trump’s lawyers, including Claremont Institute’s John Eastman, and former New York City Mayor Rudy Guliani, signaling that lawyers who support conservative causes do so at their peril. None of the Democrat officials who denied the outcome of previous elections, or their lawyers were ever charged with a crime, fined or disbarred for their unfounded activities.
With rare exceptions, political speech cannot constitutionally be the basis for a prosecution. As the Supreme Court explained in West Virgina State Board of Education v. Barnette (1943), protecting political speech is part of the “fixed star in our constitutional constellation.” The First Amendment even protects false political speech, United States v. Alvarez (2012), and advocating the commission of a crime or violence to advance political goals, unless the speech is a direct incitement to imminent lawless action, Brandenburg v. Ohio (1969). There is no exception for misinformation, let alone “malinformation,” which the Department of Homeland Security defines as “based on fact, but used out of context to mislead, harm, or manipulate.”
The Supreme Court recently heard two cases that will impact these cases. On April 16, the Court heard arguments in Fisher v. United States. That case centers on whether 18 U.S. Code § 1512, a statute used by the Department of Justice in cases against numerous January 6 defendants and against Trump in the so-called Federal Elections case (see below) applies to demonstrations, or primarily to the destruction of evidence used in a hearing. The Court appears to be leaning toward a narrower interpretation, which might benefit Trump. A decision is expected by June.
On April 25, the Court heard arguments on whether Trump is protected by presidential immunity in the Federal elections case. U.S. District Court Judge Tanya Chutkan and the D.C. Circuit Court of Appeals previously rejected immunity. During oral arguments, Trump’s counsel took a balanced position that Trump’s actions should be parsed, with official acts immune from prosecution. This nuanced stance signals that the Federal elections case likely will proceed, though, if the Court rules in Trump’s favor, it would be cut back, and delayed by motions on the scope of immunity. A ruling also could impact other cases pending against Trump, particularly the Georgia elections case. A decision also is expected by June.
If Trump is elected president, most legal experts agree that he could pardon himself in the federal cases. A president has no pardon authority regarding criminal or civil cases brought in state court.
The following brief summary of the current cases against Trump explicates that with minor potential exceptions, these cases are an abuse of law, and the prosecutors who bring them, and in numerous instances, the judges who are presiding over them, are partisan hacks placing their Trump hatred above justice and their oaths of office:
Election Eligibility: The unanimous Supreme Court decision that Section 3 of the 14th Amendment prohibits states from kicking Trump off the ballot stopped efforts underway in 36 states to deprive Americans of their right to vote for him. Without any enabling statues from Congress, or any charges ever made against Trump for insurrection, or a criminal trial, Colorado, Maine and other states were prepared to decide that Trump was guilty of insurrection and that Americans should be deprived of their rights to vote for him. That so many Americans believe destroying democracy is the way to protect democracy shows how far our nation has strayed from its founding principles.
New York Civil Fraud Case: Spearheaded by Letitia James, the New York civil fraud case against Trump is selective prosecution on steroids. No similar case has ever been brought in New York where, as here, there was no victim, no damages and no scheme to harm consumers. No other case has resulted in a comparable fine – a fine so large that it violates the 8th Amendment to the U.S. Constitution and Article I §5 of the New York Constitution. That is probably why the appellate court reduced Trump’s bond from $454 million ordered by Engoron to $175 million. Before that happened, James evidenced visceral pleasure at the possibility that she could padlock and liquidate Trump’s properties. While the results might not be overturned, ultimately, the amount of damages likely will be reduced to a much smaller sum. In the meantime, James succeeded at tying up Trump’s focus and finances.
New York Hush Money Case: Trump faces 34 counts of falsifying business records in relation to alleged hush money payments made to pornography actress Stormy Daniels prior to the 2016 election. The federal government, Bragg’s predecessor and initially, Bragg, refused to prosecute this case. It is both common and lawful for men to pay a former paramour to keep an affair quiet, and to require a non-disclosure agreement as a condition of the payment. Calling this hush money doesn’t change that. Trump paid Daniels by first paying his lawyer, Michael Cohen. Cohen then paid Daniels. Trump’s company recorded the payments to Cohen as legal fees.
Even presuming that recording the payments as “legal fees” instead of “hush money” was wrong, the labels were seen only by Trump’s bookkeepers. No one was defrauded. No one cared. The deductibility of the payments would not have been different if they had been recorded as hush money. Any reports that might have been required by the Federal Elections Commission would have been reported in 2017, after the election. At most, if the premise is accepted the label should have been “hush money” this is a minor misdemeanor, and the statute of limitations expired years ago.
To get Trump, Bragg fabricated a case. He alleged that mislabeling was part of a scheme to fraudulently obtain votes by keeping the true character of the payments out of the campaign’s federal reports. Under New York law, if a business record is falsified to support another crime, the statute of limitations is extended and the crime can be prosecuted as a low level felony.
Just a few problems: As a county district attorney, Bragg is prohibited from asserting a federal crime as the second crime. Second, for a range of technical reasons, Trump was not required to report the payments, regardless of how labeled – which is why the U.S. attorney did not prosecute. Third, New York law does not apply its fraud laws to defrauding the general public. Finally, the reports were due in 2017 and therefore could not have influenced the 2016 presidential election.
Nonetheless, Trump is locked in a New York courtroom every day. Given a New York jury and Judge Juan Merchan, a partisan judge who has donated to Biden’s campaigns and whose daughter is a Democrat operative, Trump might lose. Whether Bragg then will abandon his principles eschewing incarceration for non-violent offenders convicted of low level felonies is unknowable. Though Trump likely would overturn a conviction on appeal, the case is diverting Trump from the campaign and costing a considerable sum to defend.
Georgia Election: This case is an attempt to curtail Trump’s First Amendment rights under the guise of prosecuting improper electoral influence. While there are some potentially valid claims against Trump’s alleged co-conspirators for forged documents, computer theft, and trespass, the allegations against Trump are based on intemperate tweets and advocacy with which the prosecutors disagree. The First Amendment protects both speech and the right to petition government. Based on early orders from Judge Scott McAfee, there is a potential that he will dismiss the case after the prosecution makes it presentation. If Trump is convicted, there is a strong potential that it would be overturned. It is unlikely, but still possible, that trial could begin before the election. The Supreme Court’s decision regarding immunity should impact the timing and scope of this case. If Trump is convicted, there is a low potential that he could be jailed. Again, the prosecution achieves the Democrats’ objectives whether Trump wins or loses. For a more complete analysis of this case see my article here.
Federal Elections: Like the Georgia case, Jack Smith’s indictment of Trump in the so-called January 6 case is a whiny, indignant recitation of Trump tweets and statements that annoy the prosecutor and the Left. The indictment accuses Trump of tweeting or asserting falsehoods or of adopting novel legal theories advanced by renowned lawyers with whom Smith disagrees. As described above, by June the Supreme Court will determine the scope of Section 1512. The Court’s decision could result in two of the four counts in the indictment being dismissed. The other counts are based on a statute which applies only to financial crimes, and a statute which, with one exception, has only been applied where the accused uses violence against an individual to prevent him from voting. The Supreme Court’s decision regarding immunity will further shape the timing and scope of this case. The indictment does not allege that Trump was violent, and contrary to how this case is described by Judge Merchan in the Hush Money case, does not accuse Trump of insurrection.
Despite its weaknesses, if this case survives the Supreme Court’s ruling on immunity, Judge Chutkan, who has made numerous disparaging comments about Trump in other cases, can be expected to resolve all doubts against Trump. With a Washington D.C. jury, this appears to be another case that Trump will have to win on appeal. For a more complete analysis of this case see my article here.
Classified Documents: The charges brought by Special Counsel Jack Smith concerning the retention of classified documents at Mar-a-Lago merit a closer inspection. Trump bears some responsibility for mishandling sensitive documents, and for playing games with federal prosecutors. Recent reports indicate that he had returned just a portion of the documents this indictment likely would have been avoided. The issue here lies more in selective prosecution. Hillary Clinton’s withholding and destruction of thousands of documents is a much more troubling violation of national security. Both Joe Biden and Mike Pence withheld multiple documents. Contrary to the spin offered by Biden supporters, Biden was uncooperative until well after his lawyers discovered the documents. Still, Biden and Pence had fewer documents, and were more cooperative than Trump. Nonetheless, neither has been prosecuted. Special Prosecutor Robert Hur’s rationale that Biden is too cognitively impaired to prosecute rings hollow.
Judge Aileen Cannon, a Trump appointee, has been balanced in her rulings. She has resisted Smith’s efforts to accelerate the trial date, though this case is still on the calendar immediately after the Hush Money case. Nonetheless, it is unlikely this case will proceed to trial before the elections. If Trump is convicted, an appeal is less likely to achieve a complete reversal than the other cases.
Arizona and Michigan: This week, both Arizona and Michigan announced indictments for the use of alternative elector slates by Trump supporters following the 2020 election. Defendants in Arizona include former White House chief of staff Mark Meadows, John Eastman, and Rudy Guiliani, and Trump was named an unindicted co-conspirator. In Michigan, Trump, Meadows, and Giuliani are unindicted co-conspirators. Alternative elector slates have been used before, including by John Kennedy in the 1960 election. The law is unclear regarding when and how such slates are lawful.
The United States is now seeking to financially destroy and incarcerate a former president who is also the leading opposition candidate for that office. This is what happens in Third World countries, which routinely confiscate assets of, and imprison, the opposition. Regardless of whether Trump prevails in his trials, America has crossed a line from its republican past into something very ugly.
