Salvo 03.11.2024 10 minutes

The Regime v. America

Judge hiiting tiny man by gavel

Lawfare threatens to destroy our constitutional republic.

The American legal system was a thing of beauty. Refined across centuries and emerging from the precedence of millions of common law cases, by the end of the last millennium it had become the envy of the world. Serving both a dispute resolution and truth-seeking function, it channeled the violent passions of human nature into a controlled medium. It then subjected those passions to standardized procedures (the rules of evidence and civil or criminal procedure) to yield judgments that commanded the respect of the parties and the public. 

The American rule of law sustained our capacity for self-governance. The legal system midwifed the most sophisticated property rights regime in the world, improved our collective reasoning faculties, balanced the imperative of change with the demands of tradition, and settled disputes of trivial insignificance as well as controversies of monumental importance. The system functioned so well that most Americans never even thought about it. And it commanded such astonishing respect that virtually everyone obeyed its commands in even the most partisan contests. 

But today, sophisticated regime mandarins in Big Law, government, and non-profit activist organizations seek to pervert our legal system by hacking it. They warp its dispute resolution and truth-seeking function to one that advances and sustains their grip on power, delegitimizing that grip in the process. This is known as lawfare. Its variants include access denial, weaponized defamation law, weaponized criminal law, misuse of federal and state agencies, subversive professional licensing requirements, and “adversarial inversion.” 

A Taxonomy of Lawfare

If the legal system exists to deter violence by providing an alternative forum for dispute resolution, access denial lawfare upends that purpose. Until recently, America had never witnessed a systematic effort to deny millions of people access to the legal system. Now, it’s commonplace. The 65 Project is one such effort deployed by Big Law regime apparatchiks. These opportunists have filed grievances around the country, seeking to disbar conservative attorneys who advanced causes disapproved by the regime.

The specific effect on the targeted attorneys has been devastating: John Eastman, a constitutional originalist, has spent enormous sums defending his California license against this cynical attack. But the general chill is even worse. Even if the regime fails to take the bar licenses of Eastman and 64 other conservative attorneys, every attorney in the country will think twice about taking a case the regime opposes. There will then be nobody willing to advance or defend conservative causes, or even their rights to freedom of speech, assembly, and religion.  

The regime controls all the country’s institutional power centers and should be able to dominate political discourse. Much to its chagrin, however, dissident Right outlets continue to crop up where “wrong think” and regime criticism are routine. But now the regime has learned to weaponize defamation law to crush free speech.

In Michael Mann v. Mark Steyn, et al., the well-known climate hysteric Michael Mann sued after Steyn challenged the legitimacy of Mann’s “hockey-stick graph,” calling it “fraudulent.” The court ordered Steyn to pay $1,000,000 even though Mann suffered no reputational damage and Steyn’s comments were obviously his opinion. Read page 5 of the verdict form to see the statements that gave rise to this chilling outcome.

Defamation law has also now been perverted to force regime opponents to choose between the right to free speech and the right to a fair trial. New York Democratic Judge Lewis Kaplan refused to dismiss a second case brought by former magazine columnist E. Jean Carroll, who complained that Donald Trump had defamed her by denying that he had raped her. Setting aside that Trump was not found to have raped her in an earlier trial (as that term is defined under New York law), you’re forgiven if you thought that defendants were still permitted to profess their innocence. Not any longer. This “defamation” case culminated in an award to Carroll of more than $80,000,000. It is apparent that defamation law has been perverted to punish those who deny the regime’s dogmatic narratives (Steyn) or seek to displace them (Trump). 

Now, for the first time in American history, the regime has weaponized federal and state criminal law. It recklessly prosecutes its political enemies by manufacturing crimes as blatantly as any Stalinist prosecutor. The hypocritical and dubious cases brought by federal prosecutor Jack Smith, the dumpster fire brought by Fulton County District Attorney Fani Willis, and the case about nothing brought by “Soros DA” Alvin Bragg are well known examples against Donald Trump.

But the regime doesn’t stop at public figures. It also criminally prosecutes ordinary folks with the courage to enforce the statutory or common law of the land. Derek Chauvin’s lawful subdual of the resisting felon George Floyd and Daniel Penny’s defense of others against a dangerous madman are only the most well-known examples. Meanwhile, the regime refuses to prosecute seriously its allies no matter how violent they are while hammering regime opponents like Enrique Tarrio for trivial offenses or Douglas Mackey (a.k.a. Ricky Vaughan) for made-up ones. This dangerous criminal lawfare strikes directly at the heart of our constitutional republic and quickens our descent to banana republic status, where jailing the political opposition is routine.  

The regime has deputized attorneys general to attack its high-profile opponents like Elon Musk and Donald Trump. It does this by enmeshing them in litigation that only a few years ago would have been widely viewed as frivolous. The DOJ’s absurd lawsuit by racial supremacist Kristen Clarke against SpaceX for hiring too many American citizens and the coordinated theft by New York Attorney General Letitia James and Judge Arthur Engoron of more than $450 million from Donald Trump for the victimless non-crime of applying for and repaying loans are good examples of this type of lawfare. 

And the regime deploys the regulatory, enforcement, and auditing powers of the federal agencies to enmesh the regime’s opponents, both big and small, in a labyrinth of regulatory infractions and bogus tax claims, ideally bankrupting them in the process. For the regime, this will have the dual benefit of silencing its outspoken critics while making examples of them to other dissenting Americans.

Similarly, it enlists state agencies on its behalf. For example, the Secretary of State of Maine was deployed to fabricate grounds on which to deny Americans the ability to vote for Donald Trump by removing him from the ballot. This attempt was so lame that not a single Supreme Court Justice had the gumption to agree, but regime hacks like Colorado Secretary of State Jena Griswold defended it anyway.

The regime also uses lawfare to enforce ideological conformity, going so far as to stuff professional licensing requirements with restrictions on regime heresy and obligatory acts of obeisance. In New York, attorneys must subject themselves to biannual DEI struggle sessions. And in Pennsylvania, the far-Left state supreme court adopted an insidious new rule of professional conduct that threatens to disbar lawyers who “knowingly engage in conduct constituting harassment or discrimination” based on any of the regime’s tired identity categories. Of course, that same far-Left supreme court will decide what does and does not constitute harassment and discrimination. These have nothing to do with professional competence, but any attorney who fails to comply will lose his law license.

The Pennsylvania Supreme Court, incidentally, was one of three essential conspirators in rigging the 2020 election, where it played a crucial role in a form of lawfare I call “adversarial inversion.” This type of lawfare is like a computer hack that exploits the intended operation of a system by sending it inputs it does not expect and cannot handle. In Pennsylvania Democratic Party v. Boockvar, regime operatives filed a state court complaint in which the plaintiffs (the Pennsylvania DNC and 15 of its political candidates) and the lead defendants (Boockvar) attacked numerous state election laws designed to increase the integrity and security of the election. This cunning trick exploited the legal system, which requires that the parties be actual adversaries. As the Secretary of Pennsylvania, Kathy Boockvar’s job was to enforce existing state election laws zealously. Instead of doing that, however, she joined forces with the so-called “plaintiffs” to overturn the state’s election laws in ways that favored her candidate: Joe Biden. Boockvar (a Democrat), the plaintiffs (all Democrats), and the state supreme court (majority Democratic) all agreed that the state should be forced to accept “hand-delivered mail-in ballots” at drop boxes and to extend the deadline for putting ballots in those drop boxes by three days after the election.

The president pro tempore of the Pennsylvania State Senate filed an emergency motion for a hearing with the United States Supreme Court. He sought to vindicate the legislature’s prerogative to set election law under Article I, Section 4, Clause 1 of the U.S. Constitution. Justices Thomas, Alito, Gorsuch, and Kavanaugh tried to hear the matter but were outvoted. The lawfare cynics proceeded with their case, even though the justices told them it was unconstitutional:

The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election. 

Adversarial inversion lawfare was not limited to Pennsylvania. In 2020, Marc Elias and the regime filed more than 60 similar cases in courts around the country. The effect was to transform the legal system from a dispute resolution mechanism into one that advanced the power of the regime at the expense of the rule of law. There can be little doubt that it shifted the vote totals to Biden in 2020. They’re at it again this year.

What Will Come of Us?

In many respects, it is amazing that our legal system functioned so well for so long. After all, there is no obvious reason to assume that pitting two interested parties against one another in zealous intellectual combat, subjecting their arguments to procedures winnowed across centuries of common law jurisprudence, and permitting 12 ordinary people to decide the outcome would yield the truth often enough to justify the system’s operations.

Very few countries have landed on our system. And yet, not only did it ascertain the truth with impressive fidelity, but its processes—which reflected an organic combination of reason and custom—imbued the system with a natural legitimacy that inclined the disputants to respect its judgments. Not only did it work well, but it worked better than all the others by a lot. For a long time.

And it built and sustained our form of government (constitutional law), stabilized our foreign relations (treaties), settled contentious disputes (civil litigation), improved our civil rights (equal protection), pacified the violence of our cities (criminal law), advanced our technology (patents), improved the arts (copyrights), and protected our inalienable rights to life, liberty, and property (due process). 

But now the regime’s reckless and self-serving lawfare subverts our great legal tradition—the one we inherited from the Anglo Saxons. And it’s impossible not to notice that its practitioners all have something in common. Secretary of Pennsylvania Kathy Boockvar, Colorado Secretary of State Jena Griswold, Maine Secretary of State Shenna Bellows, New York Attorney General Letitia James, U.S. Attorney General Merrick Garland, Manhattan DA Alvin Bragg, Fulton County DA Fani Willis, New York Judge Arthur Engoron, District Judge Tanya Chutkan, regime useful idiot E. Jean Carrol, big-law enforcer Marc Elias, the Pennsylvania Supreme Court, the Colorado Supreme Court, and on and on, are all, without exception, regime insiders or regime pawns on the far-Left.

The reckless regime and its mandarins use multifaceted lawfare to subvert the legal system. They do this only to advance and sustain their power at the expense of all we hold dear. Nothing less than our nation, our form of government, and our way of life, are on the line.

The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.

The American Mind is a publication of the Claremont Institute, a non-profit 501(c)(3) organization, dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Interested in supporting our work? Gifts to the Claremont Institute are tax-deductible.

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