How ‘lawfare’ may define a contentious — and litigious — era
Accusations of “lawfare” are flying fast through Washington — and beyond.
“Trump is running the government like a mafioso,” David Corn, the Washington bureau chief for Mother Jones, wrote last month, “utilizing its power to intimidate and, if possible, take out his perceived enemies.” He added that Attorney General Pam Bondi “has been delighted to serve as both Trump’s consigliere and lawfare hitman.”
It’s not just the Republicans who have been hit with this accusational term.
“Political lawfare continues to infect U.S. politics, and Democrats are still trying to destroy Republicans who advised President Trump on the 2020 election,” The Wall Street Journal editorial board wrote on Feb 20.
In this contentious — and litigious — climate, the term “lawfare” is growing in usage. Once a niche military term coined in 2001 by former Air Force Major General Charles Dunlap, it just might be one of the most politically charged words since Trump took office, one that may come to define an era.
But what exactly is lawfare?
Defining lawfare
“At the time I first started using it, it was a convenient ‘bumper sticker’ to describe a phenomenon that lots of people recognized but were having trouble articulating simply,” Dunlap told Straight Arrow News.
Having shifted from the battlefield to the political arena, lawfare describes the weaponization of the justice system itself.
“Many sources use it as a term to describe political maneuvering in the legal environment,” Dunlap said. “Most basically, it is the use of the law to accomplish what would traditionally have been done in a different way.”
Dunlap pointed to the Abu Ghraib prison scandal in Iraq as an early example — when U.S. military abuses of Iraqi detainees changed the global perception of the U.S. during what would prove to be a very unpopular war. It happened not through armed conflict, but through legal and moral condemnation.
“That this strategic military disaster did not involve force of arms, but rather centered on illegalities, indicates how law has evolved to become a decisive element—and sometimes the decisive element—of contemporary conflicts,” Dunlap wrote in a 2009 article in Joint Force Quarterly, published by the National Defense University.
More than two decades after Abu Ghraib, both Democrats and Republicans accuse each other of engaging in lawfare by using the courts for politically motivated reasons. The term defines some of the nation’s most contentious legal issues.
“It is embarrassing for our Department of Justice to sink resources into such obviously frivolous cases, and this only further contributes to the general sense that President Donald Trump’s administration has the wrong priorities,” USA Today columnist Dace Potas wrote on Feb. 19 about an attempt to prosecute six Democratic members of Congress who made a video reminding military members of their duty to refuse unlawful orders. “Trump’s DOJ’s lackluster record when it comes to securing indictments and convictions is eroding the prestige of the Justice Department as a core American institution and only deepening the toxic cycle of lawfare in this country.”
Across the political spectrum
Both sides of the aisle seem to be acknowledging that the legal system can be used — and is being used — to gain and exert political power.
“Political lawfare waged by either side undermines America’s criminal justice system, which is the gold standard of the world,” Sen. Thom Tillis, a Republican from North Carolina, posted on X on Feb. 11, also about the investigation of fellow members of Congress. “Thankfully in this instance, a jury saw the attempted indictments for what they really were. Political lawfare is not normal, not acceptable, and needs to stop.”
Trump critics have accused the president of using lawfare, saying he strategically uses the legal system and the Justice Department to weaken opponents.
Last year, he directed Bondi, the attorney general, to obtain indictments against several political enemies, including former FBI Director James Comey and New York Attorney General Letitia James. Judges dismissed both cases.
Trump also has used the legal system to intimidate the news media, filing defamation lawsuits against outlets that include ABC News, the BBC, CBS News, The New York Times and The Wall Street Journal.
“Mr. Trump has taken unprecedented steps to weaponize the federal government in the name of addressing what was, in his and many Republicans’ view, the weaponization of the justice system against him during the last two Democratic administrations,” Linda Feldmann, the Washington bureau chief for The Christian Science Monitor, wrote in October. “The lawfare in recent weeks has been intense. Last month, Mr. Trump expressed frustration with U.S. Attorney General Pam Bondi in a social media post – addressed to “Pam” and reportedly posted publicly by mistake – over delayed action against Mr. Comey, Ms. James, and California Democratic Sen. Adam Schiff.”
The Wall Street Journal editorial board — which criticized Democrats for what it considered lawfare in Wisconsin — accused Trump of the same when he sued CBS, as its owner, Paramount, was seeking approval of an $8 billion merger with Skydance Media.
“The price for the country is another worrying precedent, as the political culture spirals further downward into lawfare,” The Journal’s editorial said. “Apparently Paramount executives decided that paying eight figures to Mr. Trump was better than risking the deal.”
Legal and quasi-legal
Lawfare doesn’t always have to be sinister, Dunlap said. It can be used legitimately, such as by using international law to restrain a violent foreign adversary.
But lawfare can be more menacing, including by filing multiple meritless lawsuits to drain an opponent’s resources. Entrenching an opponent in many cases is financially expensive and emotionally and time-consuming.
“‘Lawfare’ has become a shorthand for situations where someone is using a legal — or pseudo — legal means to accomplish an objective,” Dunlap said, “often a nefarious one from the perspective of the person using the term,” Dunlap said.
Ella Rae Greene, Editor In Chief
