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The lawfare state

A court’s barring of Trump from running for president is the culmination of America’s dysfunctional reliance on the legal system.

By Lee Siegel

Though the ruling by the Colorado Supreme Court on 19 December barring the former president Donald Trump from appearing on Colorado’s Republican presidential primary ballot was a shock, it shouldn’t have been a surprise. The decision, almost certain to be overturned by America’s Supreme Court, is the culmination of a movement that has been building in the United States for decades. Conflicts that used to be successfully mediated by political process or social consensus have now been shunted off to the legal system, as a result of, as the divorce lawyers say, “irreconcilable differences” that have divided the country. The courts – or the quasi-judicial context of a congressional hearing – have become a venue of last resort, the place where America and Americans go to seek healing for what have become incurable social and political wounds.

The American agon might well have begun in 1987, when President Ronald Reagan nominated Robert Bork for the Supreme Court. The contentiousness that ensued, in which the distinguished and honourable but hard-right Bork was vilified and defamed by liberals, led to Bork’s rejection. Reagan’s next nominee, however, Douglas H Ginsburg, suffered an even more consequential fate. Outed by the ultra-liberal National Public Radio as a marijuana-smoker in his twenties when a student at Harvard Law School, Ginsburg was forced to withdraw. Then in 1991, unsuccessful attempts were made to derail Clarence Thomas’s nomination to the Supreme Court after he was accused of sexual harassment by another lawyer, Anita Hill.

The attacks levelled at Bork were just above the personal or prurient, but the trivial accusations made against Ginsburg, and then the more serious ones against Thomas, loosened America’s belt, as it were. Since 1998, when the Republicans took their revenge and impeached Bill Clinton for, partly, lying under oath when he claimed that he did not have a sexual relationship with an intern named Monica Lewinsky, America’s trousers have fallen round its ankles. The country can barely take a step without tripping before an investigator working for one employer or another, a special prosecutor, or a judge.

The descent of American public life into a maelstrom of formal investigations, judicial hearings, court proceedings, criminal trials and civil lawsuits has been breathtaking. The Supreme Court, not the American people, made George W Bush president in 2000 when it rejected Al Gore’s contest of the election results in Florida. The #MeToo movement sparked countless charges of criminal conduct, which led to countless lawsuits. The so-called woke revolution has created a cycle of retribution and redress, which takes the form of a blizzard of investigations and terminations that often result in a storm of defamation lawsuits. Sophocles himself could not have invented a more dramatic irony when Rudy Giuliani, the former mayor of New York who served as Trump’s lawyer during the 2020 presidential election, was indicted by a Georgia court using the same complex racketeering laws he employed to bring down the Mafia as a federal prosecutor in New York during the 1990s. Trump’s two impeachments while president, his efforts to use the courts to contest the results of the 2020 election, the legal pursuit of Hunter Biden, the present attempts to impeach President Biden, the four criminal indictments against Trump – though the Colorado ruling might seem a crowning national dysfunction, which it is, it also makes perfect sense.

Trump is an invasive species; his abhorrent talk of illegal immigrants “poisoning the blood of our nation” is pure projection. Once Trump snuck across the border from property development and reality television into national politics, there was no expelling him from the country’s metabolism. But when America’s liberal media spent four years hysterically chasing him from pillar to post, comparing him to every dictator in history from Tiberius to Juan Perón, and declaring his slightest bit of bombast the end of the republic, they were missing the forest for a mass of petty and irrelevant trees. The Trump who alienated the country’s military, its intelligence apparatus, its judiciary and its political establishment was not, à la Mussolini, ever going to make a coup from above. Or like Hitler, stage a takeover under cover of a national emergency. From the beginning, Trump’s greatest threat to democracy was not as an anti-democrat but as a democrat par excellence. To be more specific: the Trump who, as a businessman, initiated 4,095 lawsuits, was never about to lead the army in a coup against the government. He was, in a country where the courts were groaning under the weight of having to judge issues that were once resolved by consensus, going to use America’s fragile entanglements of legal protections to bring democracy to its knees by means of US law.

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The Colorado ruling is where American law, as the final arbiter of issues that should never have made it to the courtroom, has reached the end of the line. For one thing, the four-judges-to-three decision is not only impossible for the regular American to understand; it is impossible for the most sophisticated legal scholar to understand and explain. Based on an obscure clause in the 14th amendment, formulated just after the American Civil War and originally meant to keep former members of the Confederacy from holding public office, the clause turns on the question of whether Trump was guilty of calling for an insurrection on 6 January. Since Trump has not yet been found guilty of insurrection, the decision makes no real sense. And even if the federal Supreme Court were to uphold the Colorado decision, it is not clear whether that would bar Trump from appearing on ballots in Colorado in the general election. Nor is it clear whether Trump would still be able to run in the general election if his name did not appear on the ballot in Colorado. Nothing is clear, and there are no precedents. Which is why the US Supreme Court, mindful of the civil turmoil that a decision to keep Trump from running for president would cause, will most likely cite an absence of precedent and refuse to intervene.

It is hard to imagine a better development for Trump than the Colorado ruling. The decision’s very incoherence is proof, for Trump’s supporters, of the incomprehensible legal bureaucracy that has plagued their lives. Black Americans are afflicted by the police. The white working class, some of whom stormed the Capitol on 6 January 2021, are afflicted by the courts: by piles of parking tickets, and unpaid child custody, and procedures to determine eligibility for disability payments, and by a million penalties and punishments for petty infractions of the law committed out of frustration or distraction; and if they are tradespeople, demands from unhappy customers made in small-claims courts, or requirements that they themselves expend precious time and money in a small-claims court to retrieve payment from rogue customers.

Since Trump’s election in 2016, the kids who used to sit in the back of the class making a ruckus have moved to the front of the class, where the boys and girls who followed the rules and pleased the teacher have lately begun turning on themselves and started accusing each other of one violation of social justice after another. Generally speaking, Chaos is the spirit ruling the right in America, while Nemesis rules the left. With the Colorado judges’ well-intentioned but ill-considered decision to bar Trump from the Colorado Republican primary, the courts themselves have started to allow Trump and his followers, including a craven Republican establishment, to make chaos the law of the land.

[See also: The grim return of Alex Jones]

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