The rise of ‘lawfare’ and its implications

In the fall of 2001, in the aftermath of the Kosovo War, an Air Force colonel went to Harvard University and offered a provocative statement in an equally provocative paper that began: “Is lawfare turning warfare into unfair?”

Charles J. Dunlap Jr., who is now a general, didn’t know then that his presentation at the Carr Center for Human Rights Policy would popularize a word that would reemerge today in a vastly different context.

He originally described lawfare as “using law as a weapon of war,” but later expanded that definition to include not just the use of law, but the misuse of law, to achieve an objective. Now executive director of Duke Law School’s Center on Law, Ethics and National Security, Dunlap made clear in the paper that many people who promoted lawfare in military operations saw it as a good thing, “an ameliorator of the misery of war.”

That is hardly the case in the term’s popular use today.

Lawfare has emerged as a buzzword in politics, a shorter, catchier phrase — or perhaps a euphemism — for a practice that has been described as “weaponization of the law” in order to hobble or eliminate a political opponent. The legal cases against former President Donald Trump, and the charges brought against Hunter Biden, are the reasons that this formerly niche term is now in the running for 2024′s word of the year.

The attorney general of Missouri, Andrew Bailey, has announced plans to sue the state of New York for “unconstitutional lawfare” in the case against Trump. Utah Sen. Mike Lee is among GOP senators who have signed a letter vowing to block any appropriations bill that funds “partisan lawfare.” And per Fox News Digital , House Judiciary Committee Chairman Jim Jordan intends to offer an appropriations package that would “defund the lawfare activities” of state and federal prosecutors who lead “politically sensitive investigations.”

Meanwhile, Jordan Peterson recently wondered on X if the arrest of conservative activist Tommy Robinson in Canada was an act of lawfare. A Texas state representative is alleging lawfare against whistleblowers who said a hospital is providing gender treatment that violates state law. And The Federalist website has launched a feature called “ This Week in Lawfare Land .”

For a term that was relatively obscure until recently, we are suddenly awash in lawfare.

Speaking to Fox News Digital earlier this month, Lee spoke at length about the “ugly cycle of lawfare” and said that he has been uncomfortable in the past when legal action leading to imprisonment has been brought up in political campaigns, as when chants of “ Lock her up! ” rang out about Hillary Clinton. And the four criminal cases brought against Trump within a five-month span are without precedent. Lee and other lawmakers said after the New York verdicts that those responsible for “turning our judicial system into a political cudgel must be held accountable.”

“It’s the kind of thing I never expected to see in my lifetime, and I would prefer never to see again,” Lee said on Fox, adding, “It doesn’t have to be this way. They could still do the right thing, and perhaps put the genie back in the bottle.” Although Trump was convicted on 34 felony counts of falsifying business records, some analysts have said there were errors made that are grounds for reversal, and Lee told Fox that Manhattan District Attorney Alvin Bragg and his office could admit mistakes and “walk away from the whole thing.”

“That’s the right thing to do and that may be the only thing, at this point, that can prevent the ugly cycle of lawfare from repeating itself,” Lee said, predicting that there will be “more and more” lawfare in the future unless it stops now.

In the letter signed by Lee and 13 others, the GOP senators said they would not “aid and abet this White House in its project to tear this country apart” and listed three things they would refuse to do in response to Trump’s convictions: “allow any increase in non-security related funding for this administration, or any appropriations bill which funds partisan lawfare; vote to confirm this administration’s political and judicial appointees; allow expedited consideration and passage of Democrat legislation or authorities that are not directly relevant to the safety of the American people.”

On Fox, Lee justified this position saying that “if you are engaging in lawfare, we are not going to perpetuate that” and arguing that the scope of the legal action taken against Trump, which Lee and many other people believe is being orchestrated by the White House, warrants an equally tough response. “We can’t, in the wake of that conviction, pretend that nothing has happened, pretend that it is now going to be business as usual,” he said.

That’s a fair point. There are myriad reasons that the New York case against Trump, in particular, should never have been brought, and the bad vibes alone are not insignificant. There should be a point in every legal case in which the people in authority think long and hard on the question, “Yes, we could prosecute this case, but should we?” The conclusion in Manhattan could easily have been “no,” for reasons that had nothing to do with Trump and everything to do with the rest of the country.

Similarly, there should be a point in which people in authority say to themselves, “Yes, we could engage in lawfare to retaliate for a wrong, but should we?”

The answer should be “no” more often than “yes.”

A case study of the temptation of lawfare appears to be unfolding in Missouri, where Republican Andrew Bailey has garnered national media attention by talking about the lawsuit he intends to file against the state of New York alleging “unconstitutional lawfare” in the prosecution of Trump.

Independent journalist Judd Legum, noting that this lawsuit has yet to be filed, suggested that Bailey stands to gain more personally from his media appearances than providing any benefit for Trump. “Presumably, Bailey will eventually file something, but it will be difficult to construct a complaint that has any credibility. In the United States, in order to have standing as a plaintiff in a lawsuit, you must have an ‘injury in fact.’ In other words, it is not enough to allege that something illegal occurred. The lawsuit must show that the plaintiff was actually harmed,” Legum wrote with Aaron Rupar on the Popular Information Substack.

Legum, who previously worked for the Hillary Clinton campaign, did not use the word “grandstanding” although the accusation came through loud and clear. But political theater in itself is not dangerous like other fallout of lawfare is, and declining trust in our judiciary might be reason enough to shun it.

Trust in the Supreme Court, like other institutions, has plummeted in recent years. An onslaught of lawfare will likely seed distrust in courtrooms on state and local levels as these cases play out with unintended consequences, as they have in Trump’s messy case in Fulton County, Georgia .

Maybe lawfare can ameliorate the misery of war, as Gen. Dunlap wrote in 2011. In 2024, however, we are in need of a way to ameliorate the misery of lawfare.