January 9, 2024

Although the term “Lawfare” has origins going back to the 1950s, it remained relatively dormant and unknown until 1999 and 2001, where first Chinese military officers used the term in their book titled Unrestricted Warfare: China’s Master Plan to Destroy America. Two years later, the term was used in a paper by the highly respected, then-Air Force colonel (and later general) Charles Dunlap. In his several papers on the subject General Dunlap defined “Lawfare” as: “the strategy of using — or misusing — law as a substitute for traditional military means to achieve an operational objective.”

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The first nationally infamous use of “lawfare” was most likely the battle in 2005 to remove Tom Delay (R Texas) from his position as Speaker of the House. The vendetta against Tom Delay was led by one Ronnie Earle, the DA in Austin, Texas who had a strong dislike for Delay (One might call it TDDS). Ultimately the case was overturned on appeal, but the battle was won, as Delay was removed from office. Recognize that one of the purposes of Lawfare is to remove the person from the political scene.

Republicans have been slow to react to this strategy, as they seem to have an unwarranted trust in the goodness of Democrats to be fair and reasonable people. One person who did see the importance of the Judicial system to be used by Democrats was then candidate Donald Trump in 2016. His bold move in establishing a list of eleven (after the election, expanded to 21) potential nominees to the Supreme Court stood as a major reason to vote for him for many people. The move not only increased his likelihood for success but it served to place a focus on the need to shift the courts from a left-leaning entity towards the middle and potentially past the middle into the conservative zone.

During his four years in office, President Trump appointed 245 judgeships to various U.S. Courts. This rate of appointment (61 per year) had not been seen since Jimmy Carter’s rate of 65 per year during his term. This result also increased the need for Democrats to destroy Trump through alternative means.

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The loss to Trump, followed by their failures to remove him from office, along with seeing their power slipping from them due to Republican victories in many states, caused the Democrats to up the ante through their increased use of lawfare to destroy or punish individuals. Those falling victim to this abuse of the judicial system have included, in addition to Tom Delay: Gov. Bob McDonnell of Virginia, Rick Perry (Gov. TX),  Ken Paxton (AG, TX), Trump associates Paul Manafort, Rick Gates, General Flynn, Roger Stone, Dinesh D’Souza, George Papadopoulos, Harrison Floyd, and of course Donald Trump himself. Lesser known individuals, such as Rick Renzi (R-AZ), may not have garnered national attention, but have also fallen victim to these tactics. It is noteworthy that federal prosecutor and now Trump persecutor Jack Smith was the prosecutor of both Rick Renzi and Gov. McDonnell. Prosecutorial misconduct in the Renzi case was cited as one reason for Renzi’s pardon.

Lawfare tactics vary: People can be charged for crimes that a DA says was committed, when no such crime may have actually occurred, Delay and Trump for example. Or people are selectively punished, or charged for crimes that are not normally prosecuted or result in no jail time (Manafort, Papadopoulos, D’Souza). Additionally, SWAT teams may be used when not required (Mar-a-Lago, Roger Stone, Mark Houck).

Recently, former top lawyer for the DNC Marc Elias established a website called Democracy Docket. The website, in a carefully worded opening on its home page, declares:

“The courts are central to the fight for our democracy and we are dedicated to exposing what is happening and why it matters.”

Ignoring, other than this comment, the misuse of “Democracy,” what is apparent is that Marc Elias has taken up the reins to guide the Democrats through the legal system in their attacks against Trump, so as to keep him off the ballot as well as to control other aspects of our election processes, such as gerrymandering (bad when Republicans do it [North Carolina], ignored when Democrats do it [New York, Maryland, Illinois].

Elias has been instrumental in many of the legal filings involving changes in voting laws, redistricting, and, of course the Amendment 14 battles. We are to be encouraged, though, that the good guys are winning a few fights, such as the recent victory in Georgia by True the Vote.