(Curtis Means/Pool via Reuters) |
I expect that there will be much for conservatives to like in the new administration, as well as much that may have us shaking our heads, or worse. However it unfolds, one of the best things to come out of President-elect Donald Trump's victory last week is that it represents an emphatic rejection of lawfare — the weaponization of legal procedures against political opponents.
That is banana-republic stuff. It's un-American. Having covered it as such for the last two years here at National Review, it was gratifying to hear the electorate say so. And if this issue is as concerning to you as it is to us, we hope you'll consider a donation as part of our fall webathon, which will support the work we do calling out the politicization of the justice system.
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There is significant misunderstanding about this. As readers know, I am not exactly a dogmatic Trump guy; I've been supportive when the once and future president has advanced conservative causes and objected when he hasn't. I was a harsh critic of the stop-the-steal campaign that followed the 2020 election and culminated in the Capitol riot. I believe much of the conduct that became grist for the lawfare campaign was indecorous.
There is, however, a big difference between, on the one hand, condemning conduct in the political realm and, on the other, criminalizing our political disagreements.
No one is above the law. It's vital that the president, who takes a constitutional oath to execute the laws faithfully and to preserve the Constitution, not be seen as above the law. If a president were to commit what Trump's former attorney general Bill Barr memorably described as a "meat and potatoes" crime — i.e., a serious, easily understood offense that was supported by strong evidence and would incontestably result in prosecution if committed by ordinary people — then of course the president should face criminal prosecution, like anyone else.
But such crimes were not to be found in anti-Trump lawfare. The cases fell into three categories. First, there was the blatantly partisan selective prosecution brought by Manhattan's elected progressive Democratic district attorney, Alvin Bragg: a stale, petty, business-records case that Bragg inflated into a federal campaign-finance-fraud caper that the feds themselves had declined to charge (due to insufficient evidence) and that Bragg lacked jurisdiction to bring — even though the judge, an activist partisan Democrat, indulged him. Part of the voters' rejection of lawfare is explained by revulsion over this case, the only one that made it to trial.
Second, there was Biden-Harris DOJ special counsel Jack Smith's 2020 election-interference case (and the Georgia case brought by Fulton County DA Fani Willis on a similar theory). As noted above, the underlying behavior Smith sought to address was reprehensible. But it was not fit for court prosecution because Trump was clearly not criminally liable for the riot, and even less was he guilty of insurrection — a crime for which no one has been prosecuted. In essence, Smith was trying to use the judicial system as a proxy for Congress's decision not to convict Trump of impeachment offenses. That's not what the justice system is for. And that was underscored by Smith's need to stretch statutes to the breaking point (and beyond) to try to come up with a prosecutable case — heedless of the constitutional complexities of criminalizing official acts of the presidency. The Supreme Court's immunity decision put a stop to that. In our system, alleged abuses of presidential power are the business of Congress, not executive-branch prosecutors.
Third and finally, there was the Mar-a-Lago documents case. To my mind, it was the most serious matter in terms of potential criminality. But it challenged America's commitment to equal protection under the law. How could a Democratic-run Justice Department — overseen by many Obama-Biden administration veterans who gave a complete pass to Hillary Clinton for mishandling classified intelligence and obstructing the investigation of her email scandal — prosecute Trump after it declined to prosecute President Biden on his decades-long pattern of violating the very same classified-information statutes. One guy gets a walk while the other guy faces potential centuries of imprisonment? That's not the way America is supposed to work.
And that's what we're committed to at NR: the way America is supposed to work. We're going to stay on the lawfare beat because it transcends Donald Trump. It is one of our era's signal challenges because progressives believe in using legal procedures punitively, making the process the punishment, and using their targets as an example to Americans — especially conservatives — not to dare challenge progressive officials and ideas. |
We're here to call it out, to shine a light on it. We're here to proclaim that we can't have security and prosperity without the rule of law and that, if we want the rule of law, we can't abide lawfare — which inexorably leads to two-tiered law enforcement and delegitimizes our courts as the bulwark of even-handed justice.
But as always, we can't do this work without your support. If you believe, as I do, that it's essential for National Review to continue fighting against lawfare and demanding that our political differences be settled through our republic's democratic processes, please consider making a donation, whatever you can spare — $25, $100, $500, $1,000, or more. Anything you are in a position to give helps us carry out this important work. Thanks so much for your consideration. Yours truly, Andrew C. McCarthy Contributing Editor National Review |
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