Trump Wins the Lawfare War


 

Pundits and historians will be a long time sorting out the magnitude of Donald Trump’s electoral victory but one thing already is clear: Trump not only triumphed in the presidential contest, he also won the lawfare war. The latter—a victory for the constitutional foundation of the country —may prove as consequential as the former.

“Lawfare” is a political war fought by other means: partisan warfare conducted in the courts and the media. Trump spent the entire Biden presidency battling lawfare cases brought by  Democrat-allied prosecutors and judges—by Justice Department Special Counsel Jack Smith, Manhattan District Attorney Alvin Bragg, Georgia District Attorney Fani Willis, New York State Attorney General Letitia James, New York judges Juan Merchan and Arthur Engoron, and others.

Trump fought back in the courts and in the court of public opinion. His election win not only deals death blows to the Democrat-aligned lawfare cases, but possibly to the practice of lawfare itself. Let’s take a moment to survey the legal landscape:

Jack Smith Goes Down

In November 2022, President Joe Biden’s attorney general, Merrick Garland, appointed prosecutor Jack Smith as special counsel for two Justice Department investigations: the January 6, 2021, events at the U.S. Capitol, and separately, alleged Trump mishandling of classified documents. It was a particularly brazen lawfare move because by that time, the outline of the 2024 presidential contest was clear: Donald Trump was the frontrunner for the GOP presidential nomination and Joe Biden was signaling that he would run for re-election. The Biden Justice Department investigating the GOP presidential candidate seemed an outlandish and illegal proposition, but Garland and Smith pressed on. In July, Judge Aileen Cannon had seen enough and dismissed the classified documents case on the grounds that the special counsel was unlawfully appointed. In November, after the election, the Justice Department threw in the towel, moving to drop all January 6 charges against Trump on the grounds that a sitting president cannot be charged with a crime. Trump rightfully claimed victory. “I persevered, against all odds, and WON,” he wrote on Truth Social. He added, “These cases, like all of the other cases I have been forced to go through, are empty and lawless, and should never have been brought,”

Bragg’s New York Criminal Case in Death Spiral 

Deep blue New York produced a cadre of lawfare warriors in pursuit of the once and future Republican president. One of its chief combatants was Manhattan DA Alvin Bragg, who campaigned for office on an anti-Trump platform, reminding voters that he had “sued Trump more than a hundred times.” Before charging Trump in April 2023 with thirty-four felony counts of falsifying business records—generally a low-level misdemeanor—Bragg had led a civil lawsuit against the Trump Foundation and criminal cases against the Trump Organization and its chief financial officer. Trump was convicted in May on the business records charges, but his lawyers are asking that the case be thrown out on numerous grounds, including that any sentencing would unconstitutionally interfere with Trump’s conduct of a second term in the presidency. Bragg recently petitioned the court to put the case on ice for the entirety of Trump’s second presidential term—a move the Trump team ridiculed as “a total failure of the prosecution” signaling that the case is “effectively over."

Lawfare Judges Under Pressure

Presiding over the flurry of appeals in the business-records case is Justice Juan Merchan, another New Yorker with a lawfare pedigree. Earlier this month, Merchan threw out Trump’s appeal to dismiss the case on the basis of presidential immunity. Like most New York judges, Merchan rose through the ranks of the Democratic Party’s political machine, which plays a significant role in state judicial appointments. Before becoming a judge, Merchan served as a prosecutor in the Manhattan DA’s office and worked for the New York attorney general. In 2006, Mayor Michael Bloomberg appointed him to a family court judgeship, and he was elevated to criminal court in 2009. In July, Merchan received a “caution letter” from the New York Commission of Judicial Conduct warning him about donations to Joe Biden and other Democratic causes. Merchan’s daughter, Loren, is president of the left-wing digital advertising firm, Authentic Campaigns. Juan Merchan will have plenty of power over the Trump appeals in the coming months, but he will not have the final word. Trump can appeal to higher New York courts and, ultimately, the U.S. Supreme Court.

Trump also faced a high-stakes legal assault from New York State Attorney General Letitia James in a civil fraud case presided over by Justice Arthur Engoron. James and Engoron both came up through the progressive ranks of the New York Democratic Party. Like Alvin Bragg, James used Trump as a punching bag in her campaign for political office. She denounced Trump as an “illegitimate president” and vowed to “shine a bright light into every corner of his real estate dealings.” Engoron, a longtime Democrat, protested the Vietnam War at Columbia University and has been a member of the ACLU for three decades. Engoron presided over a non-jury civil fraud trial related to real-estate valuations by the Trump Organization and stunned legal observers on both sides of the political aisle in February with a guilty verdict ordering Trump to pay a staggering $335 million penalty—plus rapidly growing interest and additional fines. Trump immediately vowed an appeal and at a September hearing, New York appellate judges signaled skepticism about the Engoron ruling.

The Georgia Case Collapses

Meanwhile, in Georgia, Fulton County DA Fani Willis’s case against Trump for allegedly conspiring to change the outcome of the 2020 election has collapsed. A state appeals court removed Willis and her entire office from the Trump prosecution over a conflict of interest involving a romantic relationship between Willis and another member of her team. The Georgia Court of Appeals panel said the “appearance of impropriety” was so powerful that “this is the rare case in which disqualification is mandated and no other remedy will suffice to restore public confidence in the integrity of these proceedings.” Willis, a longtime Democrat, can appeal to the Georgia Supreme Court, but the legal tides are running against her. Trump’s Georgia lawyer issued a statement saying that the decision “puts an end to a politically motivated persecution of the next President of the United States.”

Judicial Watch has been investigating the lawfare against Trump for years. Our own Tom Fitton was dragged into a Jack Smith grand jury for, as he noted on X, “four hours of harassing questions about First Amendment-protected activity and debates about electors, tweets, what I ate for lunch at the White House, and whether I watched Trump’s election night speech. It was all about politics.”

At Judicial Watch, we continue to closely track lawfare developments, push for more accountability, and report to the public. Among our recent moves, we’re seeking a special master in our lawsuit for Fani Willis’s communication with lawfare warriors Jack Smith and the House January 6 Committee; earlier this month, Willis admitted communicating with the January 6 Committee, but released only one already public letter.  In February, we protested a Biden Administration move to keep secret the names of top Jack Smith staff. In 2023, we sued the Justice Department for records of funding and assistance between Smith’s office and Willis’s office, and we obtained information showing Manhattan DA Bragg hiring high-priced lawyers to beat back Congressional inquiries into his Trump prosecutions.

There’s more to come. Stay tuned.