Lawfare ahead … pitched battles


By ann summers
Lawfare is a form of asymmetric warfare, consisting of using the legal system against an enemy, such as by damaging or delegitimizing them, tying up their time or winning a public relations victory. The word is a portmanteau of the words law and warfare,

The party in the minority always grapples with just how oppositional it should be in its effort to regain power. Rarely, however, has the concept of impeachment been so openly, and so early, discussed in the course of midterm elections.

Lawfare of a particularly brutal variety practiced by all sides may be ahead, so talking impeachment is probably premature whereas the elections do have a schedule, assuming that the nation isn’t brought to a Constitutional brink. The Strategy of Tension necessitates lawfare and could in the case of dog-wagging, compel actual warfare.

And that’s for a reason: Trump, with a seemingly daily appetite for controversy, has invited the focus. But, secondarily, some Democrats worry that by broaching the possibility, they risk ostracizing the swing voters they need to win seats.

“All this talk of impeachment does is it makes Republicans imagine Nancy Pelosi running the House,” said one close Trump ally, who said he and the administration welcomed the impeachment discussion. “You couldn’t ask for a bigger motivator for our base.”


And yet the underlying issue is going to be about ethics which is not the best candidate for a third rail issue, but #TrumpRussia is moving to the foreground because of the money trail.

The possibility of tracing Russian money going to the GOP campaign and its connection to Trump’s problems should seal the fate of 45* but before then we have a long march of lawfare tactics.

People will go to jail but perhaps not the ones we might hope, and the determinants of a change in power will still depend on free elections.

2018 and every election until then should hold our immediate attention, as well as the daily attention to activist matters.


Nancy Pelosi just might be speaker again someday if she turns “ethics” into the watchword of the Democratic minority and forces a lot of House floor votes.

She has a new opening to do it, thanks to a House Republican majority so tone-deaf and self-absorbed that it tried to open the Trump era by gutting the Office of Congressional Ethics…

Back in 2006, when she was minority leader and Republicans held the White House and both chambers of Congress, Pelosi’s promise to drain the swamp in Washington got a big, 11th-hour boost from the Mark Foley page scandal.

Speaker Dennis Hastert had ignored it. Republicans were thrown out on their ears, and Pelosi became the first female speaker of the House and the first Democrat to hold the gavel since Newt Gingrich’s 1994 revolution. Gingrich had been pushed out after his own ethics scandal, and the pursuit of an impeachment of President Bill Clinton contributed to a poor Republican showing in the 1998 midterm elections.


There also is no certainty yet that President Trump will be either impeached or choose to resign.

But those possibilities, which 14 days ago were almost unimaginable to any informed and fair-minded observer, are now very real.

Even if President Trump is able to remain in office through the end of next year, he will have been long abandoned by most serious conservatives in Congress, as the jeopardy of continued association with him becomes clear.

Within a few months — and possibly in just weeks — most GOP elected officials will have acknowledged, at least privately, that Donald Trump has become the Republican Party’s greatest liability. No presidency can overcome that.

The collapse of this administration may or may not be swift.

Conservative Paul Rosenzweig makes some useful points about the tactical road ahead… all are not necessary to conduct lawfare and any one area has strategic capability, but all must be pursued in as much as the Trumpery continues.

The Trump/Russia investigation is looking now to be of the bad sort. It starts with the problem of general concern about President Trump and his Russian connection. But at least as it stands now, the overall miasma of concern is insufficiently particularized—and so one day we are talking about testimonial perjury and the next we are talking about bank funding and after that, we are talking about meetings with ambassadors.

The macro/strategic concerns are ill-defined and the micro/tactical ones are getting all mixed up…

the Trump/Russia investigation should subdivide any inquiry into at least five distinct legal/factual questions—each with significantly different investigative needs and, likely, significantly different potential outcomes.

1) Allegations relating to President Trump’s personal conduct in Russia. The thesis of this aspect of any investigation would be that public knowledge of the President’s behavior would be embarrassing to him and that, therefore, he is subject to potential compromise by those who might threaten him with disclosure.

2) Allegations relating to President Trump, the Trump family and the Trump organizations and their financial connections to Russia. The thesis of this aspect of the investigation would be two-fold. First, as with the investigation of the President’s personal behavior, it is possible that embarrassing aspects of the suspected financial dealings would be a basis for potentially compromising the President—either to protect himself, his children or his companies… In addition, unlike the investigation of personal conduct, this aspect of the investigation might also result in the discovery of criminal conduct.

3) Orthogonal to the prior parts of our inquiry, and potentially completely unrelated (though, as I will note below, one reasonable hypothesis is to the contrary) would be an investigation into Russian efforts to effect the American election

4) Trump campaign contacts with Russia. This aspect of the inquiry is the one most in the headlines these days. General Flynn, Attorney General Sessions, Jared Kushner, and other White House staff and Trump campaign advisors are all said to have met with various Russian actors during the course of the campaign and in the run-up to the inauguration. Some of the people involved are the same people who might have knowledge of the Trump/Russia financial dealings, and thus there is some overlap.

5) And, finally, of course, there is the cover-up. Here, as in so many cases, our thesis is simple: Often political embarrassment leads to concealment.

“…the extent to which the repeated and overt invocations of the most invidious motivations on the part of the President himself, his campaign, his adviser, and his Twitter feed will render an otherwise valid exercise of this power invalid.”


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