The Prussian general and strategist Carl von Clausewitz famously said that “war is the continuation of policy with other means.”
But that was in the 1830s. Here in 2024, we’re much more civilized: We do our political warfare in the courts.
Beginning with the rise of the progressive prosecutors and continuing with the unprecedented weaponization of law against former President Donald Trump, leftists have turned the supposedly neutral forums of the courts into yet another ground for partisan bloodletting. Whether they succeed or not, the big loser will be the justice system and the rule of law itself.
The Anglo-American justice system requires both adversarial efforts and impartial judgment, each in its proper place. The parties and their attorneys are supposed to be focused on winning. While there are limits on their efforts — prosecutors are required to hand over exculpatory evidence to defense attorneys, for instance — their role is that of a legal combatant. Each side is trying to win.
Judges and juries, on the other hand, are supposed to be impartial. They take oaths to that effect and are expected to live up to them. The system works when the lawyers are zealous advocates and the triers of fact are scrupulously unbiased. It all adds up to a part of the neutral rule set necessary in a liberal democracy.
The progressive prosecutor movement of the past decade was the first step in a sprawling effort to turn this system on its head.
When district attorneys come to office having pledged to be less zealous advocates for the people than their predecessors were, it short-circuits the system immediately. We saw this across the nation over the past decade, from George Gascon and Chesa Boudin in California to Larry Krasner in Philadelphia to Alvin Bragg in New York. When the top law enforcement official in the court system refuses to do his or her job, there is no one left to do it. Defense attorneys can’t, and shouldn’t, ease up on their advocacy just because the other side is self-sabotaging. Judges, likewise, cannot act as prosecutors. Things begin to fall apart.
And they fell apart quickly. Murder rates were the most obviously affected, but other crimes rose even more quickly. All of the quality-of-life laws that made cities livable were, at best, sporadically enforced by police who knew that they were wasting their efforts, that the accused would be set free again the next day.
Not satisfied with mere nonprosecution, some district attorneys are working hard to undo the successful prosecutions done by their predecessors. In Philadelphia, Krasner bent over backward to get a murderer released from jail, withholding evidence from the court that would have worked against their case and declining even to notify the victims’ surviving relatives of the challenge.
The practical effects of this rampant nonprosecution are well known and well covered elsewhere. And the pendulum has begun to swing back on liberal cities’ approach to crime. Boudin is gone, and Krasner and Bragg are now facing tougher majors, albeit fellow Democrats, who represent voters tired of being victims of crime.
The effect on the rule of law itself, though, will be harder to repair.
When progressive prosecutors do bestir themselves to carry out the duties to which they were elected, they are most zealous about prosecuting police officers who they believe have exceeded the limits of their profession in one way or another or jailing citizens who intervene to stop mentally ill vagrants from harming their fellow passengers on the subway.
They also go after enemies — starting with Trump.
In doing so, these progressive district attorneys twist the law and the facts in a way they would never do to prosecute a more typical crime. Indeed, this sort of overzealous prosecution used to outrage Democrats.
In 2007, professor (and Marxist activist) Angela Davis wrote a whole book about the abuses of elected prosecutors. She decried the “lack of enforceable standards and effective accountability” in prosecutors’ often “arbitrary, hasty, and impulsive” decision-making processes. “There is no historical or constitutional support,” she wrote, “for the de facto unaccountable 21st-century prosecutor.”
By 2018, though, she found reason to believe that the “unaccountable” prosecutors were not all bad — not because anything had changed in the powers of the job but because progressives such as Krasner and Chicago’s Kim Foxx were the ones wielding them. “The chief prosecutor,” Davis wrote, “can change the goals and culture of a prosecution office.”
And so they have, at least in America’s biggest cities. Prosecutors are good again, progressives say — as long as they’re going after the right people. In 2024, that means Trump.
In New York last week, Bragg began perhaps the most absurd version of the lawfare against Trump.
It begins with payments Trump made to Stephanie Clifford, better known as porn star Stormy Daniels, in exchange for her silence about an affair she had with Trump before he entered the political arena full time. That sounds like blackmail against Trump, but of course, that’s not what Bragg wants to investigate here. Instead, he claims the payments constituted campaign finance violations.
That’s a federal crime, and federal prosecutors looked into it, not because Trump paid Clifford with campaign donors’ money but because he paid it with funds from his own corporation. Trump’s opponents say this is illegal because it helped the campaign, making it a campaign donation from a corporation, which is illegal. One must imagine that if the campaign had paid for it from its own funds, they would say it’s a violation because it benefits Trump personally. Progressives will pretend not to judge sexual peccadilloes like adultery, but when Trump does it, they’ll find a way to make him pay.
The federal authorities never charged Trump, which should have been the end of the matter. So how did Bragg shoehorn himself and the New York County District Attorney’s Office into this? By alleging that by using money from his New York-based corporation to violate federal law, Trump committed the state crime of falsifying business records.
That’s normally a misdemeanor, and Bragg came to office pledging never to prosecute nonviolent misdemeanors. But this is war, not law. So he calls it a felony by saying the falsification was in aid of another crime, the campaign finance violation with which Trump was never even charged. It’s a tremendous stretch to indict the former president, but Bragg and his supporters are no longer concerned about the problem of “unaccountable” prosecutors.
The lawfare in Georgia has a similar basis. Fulton County District Attorney Fani Willis came to office after campaigning as a centrist, but she soon took up the progressive and expansive use of power in office. One month into her first term, Willis started an investigation into Trump’s attempts to influence the certification of his loss of Georgia’s 16 electoral votes in 2020. There was never any doubt that indictments would be the result.
Trump’s actions were out of line, but were they criminal? Like Bragg, Willis found a way to force the political issue to become a legal one.
Willis claimed that Georgia’s version of the Racketeer Influenced and Corrupt Organizations Act could be used far beyond the intended purpose of fighting organized crime and could apply to any pattern of illegal activity by a criminal group. The alleged crimes here were federal, but the doing it with other people creates a criminal organization that violates state law, in Willis’s telling.
As Andrew McCarthy wrote at the time of the indictments, “To retain Trump in power despite his election loss — is not a crime per se.” If it were, regular conspiracy charges would have sufficed. Instead, Willis has to say that Trump and the other 18 people indicted with him were part of a criminal organization, like the Mafia. But these were a collection of advisers, campaign staff, and others. So, we see the law stretched once again to the breaking point.
If the defendant were anyone but Trump, everyone would see this case, like the New York case, as an abuse of prosecutorial power. Democrats still recognize this overreach when they see it. Just this month, Hunter Biden alleged that his father’s Department of Justice was unfairly targeting him in his pending trial for gun law violations. But when it’s Trump? Anything goes.
Trump’s political opponents justify their extremism by claiming that he is an aberration, a unique threat to the democratic order. And not every charge against him is without merit: The federal classified documents case is on more solid legal ground, if also selectively enforced. But Democrats’ own 2016-era rhetoric about norms should remind them that patterns of behavior, once broken, are not easy to rebuild. Courts have never been perfect, any more than any human institution, but the ideals of impartial law and order meant that those who worked within that justice system were supposed to strive for that level of justice.
Progressive prosecutors and their more radical supporters think impartiality is a lie, a cover for power structures to do what they were going to do anyway. If they took the theory a step further, they might worry that the same weaponization of law will be used against them when the Republicans are next in office, which could be as soon as next year.
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But there is reason for optimism. Appetite for rejection of the neutral principles of liberal democracy has been building on the far Left since the 1960s. For the Right, this seems foreign and uncomfortable. Trump may have campaigned on “lock her up” in 2016, but his DOJ never brought charges against Hillary Clinton. Perhaps the experience of malicious prosecution has changed him, but we can hope that a Republican administration would be staffed with people who still view law and politics as somewhat separate.
Most voters still believe in neutral principles and equal justice — and want to keep politics out of it.
Kyle Sammin is the managing editor of Broad + Liberty.
