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5 June 2024

Waging lawfare against Trump will not end well for Democrats

Progressives must speak out against partiality in the legal process and the endless persecution of the former president.

By Sohrab Ahmari

Reacting to Donald Trump’s hush-money conviction in Manhattan on 30 May, the French writer Pascal-Emmanuel Gobry asked on X: “Has there been a single left-of-centre person… who has said: ‘Hey, nakedly partisan prosecutions of your political opponents goes against the values of liberal democracy, rule of law, justice, and everything my side claims to support?’”

A number of progressive figures have, in fact, decried lawfare against Trump and the Trumpians. The law professor Samuel Moyn, the civil libertarian Glenn Greenwald, the left economist Christian Parenti, and the heterodox Marxists clustered around Sublation magazine, among others, have maintained that in a democracy, politics should mainly be conducted in the voting booth, not in the courts or the interrogation rooms of the FBI.

But the honour roll of the principled anti-lawfare left is all too short. That’s a shame, because right-wing populists won’t be the only victims.

Does Manhattan district attorney (DA) Alvin Bragg’s case against Trump count as lawfare? You bet. As the former federal and state prosecutor Elie Honig wrote in New York magazine, “The DA’s charges against Trump push the outer boundaries of the law and due process.” To wit, Bragg pressed a boutique legal theory “seemingly crafted individually for the former president and nobody else” – a classic form of prosecutorial abuse.

The basic crime at issue was Trump’s falsification of business records related to a non-disclosure payment to his porn-star paramour Stormy Daniels. But as Honig pointed out, a falsification charge is a mere misdemeanour under New York law, thus unlikely to generate global headlines. Plus, the statute of limitations on Trump’s fiddling with his records had long expired.

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To get around these inconveniences, Bragg upgraded the charges to a felony – indeed, 34 felonies – by arguing that Trump had falsified his records “with intent to commit another crime”: namely, New York state election-law violations whose exact nature and nexus with federal law were kept vague until the trial was well under way. This deprived Trump and his attorneys of sufficient notice of the accusations they were supposed to fend off.

Underscoring the political nature of the case, Bragg won his elected office in 2022 by vowing to go after Trump. The judge, meanwhile, has donated to a Democratic-aligned political action committee, according to Federal Election Commission filings, specifically designating his funds for “resisting the Republican Party and Donald Trump’s radical right-wing legacy”.

 All this will come under scrutiny in a future appeal. But even if the conviction wasn’t legally dubious, half of Americans would still view it as illegitimate. For that half of the country, they (Democrats, the security establishment and their media allies) have been out to get Trump from Day One. Trump’s first term was consumed by Russiagate and two impeachments.

Since then, he has been barraged with 91 indictments across four jurisdictions, plus unsuccessful attempts to boot him from the ballot in at least two states. Some of these charges are more meritorious than others. His attempt to intimidate the secretary of state in Georgia into helping him “find” votes in the wake of the 2020 election should make all Americans queasy.

Yet much of the public can’t but notice that the disciplinary hand of the law comes down harder and more swiftly on Trump & Co than any other political sector. For example, while it has become clear that seemingly every ex-official with a security clearance keeps a cache of classified documents in his garage, only Trump is facing a special-counsel prosecution related to his mishandling of such papers.

By contrast, when the New York Post exposed the Biden clan’s influence-peddling in Ukraine and China, traditional media, Big Tech and the security apparatus circled the wagons. Facebook and Twitter suppressed the story, and most mainstream journalists defended the censorship, taking for gospel the false assertion by 50 prominent ex-spies that the Post’s reporting on the Hunter Biden files was Russian disinformation. Only after the election did some outlets do their own reporting and conclude that, yes, the Hunter laptop is real and troubling.

Such partiality in the application of law and institutional norms should alarm progressives. To adapt Marshall McLuhan’s famous formula, lawfare’s method is the message: those who deploy it in the name of “defending democracy” have a narrow account of what counts as democracy, one that coercively excludes any challenge to a ruling-class consensus that a left worthy of the name must contest.

For much of the 20th century, it was the socialist left that bore the brunt of such activity. Beginning in the 1950s, the security state singled out militant labour unions and left groups for both covert infiltration and overt lawfare. In the opening decades of the 21st century, however, the target has shifted to right-wing populists, while the CIA and FBI recruit for “intersectionality” and give a culturally leftish veneer to their same-old skulduggery.

But the pattern could shift again. The harsh crackdown against the campus Gaza encampments is a reminder that the establishment is prepared to train political law enforcement on the left. For progressives who wish to preserve independence from the ruling Democrats, joining the anti-lawfare camp is a matter of political survival.  

[See also: What the left and right get wrong about the politics of family]

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This article appears in the 05 Jun 2024 issue of the New Statesman, The Left Power List 2024