Will Democrats ever admit that their lawfare and weaponizing the government were wrong?
Jack Smith shows no regret or second guessing, John Yoo says
Former Deputy Assistant Attorney General John Yoo discusses lawfare against President-elect Donald Trump 'Your World.'
On President Donald Trump’s first day back in office, he signed an executive order entitled "Ending the Weaponization of the Federal Government," responding to the Biden administration’s lawfare against him. Democrats still harshly criticize that E.O.
On Nov. 15, 2022, former President Donald Trump announced that he again was running for president. On Nov. 18, Attorney General Merrick Garland appointed Jack Smith as special counsel to investigate and prosecute Trump, a historical first because prosecuting a former president and the leading presidential candidate of the major opposition political party shattered two centuries of legal norms and tradition.
Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, recently said that Biden’s "Justice Department’s infected with political decision-making, while its leaders refuse to acknowledge that reality."
President Donald Trump and Attorney General nominee Pam Bondi (Getty Images)
Trump consistently and correctly criticized the Biden administration’s politicization and weaponization of government. He must now fundamentally choose whether to allow the Democrats’ wrongful lawfare against him to naturally end.
SHOULD PROSECUTORS BE PROSECUTED FOR THEIR LAWFARE CAMPAIGN AGAINST TRUMP?
Unfortunately, the Biden administration’s last-minute machinations, such as politicized special counsel reports and Biden’s blanket pardons for his family, friends and political allies, signal that Democrats likely will not stop lawfare and weaponization until they are turned against them.
Biden’s statement accompanying his pardons showed that he knew lawfare was wrong: "baseless and politically motivated investigations wreak havoc on the lives, safety and financial security of targeted individuals and their families… being investigated or prosecuted can irreparably damage their reputations and finances."
If Democrats disavowed lawfare and committed to never doing it again, Biden’s last-minute pardons would have been unnecessary. Instead, they indicate that Democrats still want lawfare, expect tit-for-tat Republican-led investigations of Democrats, and anticipate that Trump perhaps will pardon his family, appointees and political supporters when he leaves office.
NEW YORK LEGAL LAWFARE CIRCUS AGAINST TRUMP IS CONSTITUTIONAL THREAT THAT MUST BE DISMISSED
Democrats recently signaled their commitment to lawfare when they attacked Pam Bondi during her confirmation hearings about "future weaponization" at DOJ. They intend to do the same at Kash Patel’s upcoming hearings for FBI director.
Their questions followed Special Counsel Jack Smith’s pointless report, where he inaptly claimed that he would have convicted Trump for J6 but for the 2024 election. Smith is wrong because he ignored the Supreme Court’s Trump immunity case and cases such as Fischer, McDonnell, and Yates, all of which stripped away the heart of Smith’s charges. Ironically, Smith was the lead prosecutor in McDonnell; the Supreme Court ruled against him, 9-0.
Furthermore, Smith’s report futilely cited the Trump dissenting opinions and the lower courts’ denials of presidential immunity, even though the Supreme Court rejected them; this reveals Smith’s bias and poor legal judgment.
THE PUBLIC REJECTED LAWFARE WHEN THEY RE-ELECTED TRUMP
Smith’s report implied that the Supreme Court was wrong: "no court had ever found that presidents are immune from criminal responsibility for their official acts, and no text in the Constitution explicitly confers such criminal immunity on the President." The Supreme Court, however, never before had to rule on presidential immunity because no DOJ ever prosecuted a former president.
Perhaps Smith takes comfort from legacy media outlets which supported him. For example, The Washington Post noted that Smith’s report "seems to make a point to offer a subtle but pretty unmistakable rebuke of the Supreme Court and its role in sparing Trump a possible conviction." Smith’s duty as a special counsel, however, is to obey the Supreme Court, not ignore or "rebuke" it.
Customarily, special counsel reports are dry, boring, factual documents. Smith filled his with politically tinged allegations that he cribbed from his indictments and the congressional J6 committee.
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He so strenuously claimed that he and his office were "unbiased," "neutral," and "professional" such that he "doth protest too much, methinks" as per Shakespeare’s "Hamlet," Act 3, Scene 2. No previous special counsel felt the need to repeatedly declare his own fairness and disinterest; none ever prosecuted a former president and the leading candidate of the main opposition party.
Worse, Smith dropped an "October Surprise" when he filed a huge J6 court brief shortly before Election Day, one-sidedly reciting unflattering allegations against Trump. It wrongly claimed, among other things, that Trump directed "an angry mob to the United States Capitol to obstruct the congressional certification of the presidential election and then leverage rioters’ violence to further delay it" and that Trump "resorted to crimes."
Smith violated DOJ’s internal rules, which state that federal prosecutors "may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election or for the purpose of giving an advantage or disadvantage to any candidate or political party."
It appears that Pam Bondi will be confirmed as attorney general. She and President Trump can right our DOJ and criminal justice system, but only if the Democrats admit that their lawfare and weaponizing the government were wrong and backfired on them.
Sadly, it may be that Democrats have to be shown that investigations and prosecutions can descend on them just as easily as they did on Republicans in order to drive a stake into lawfare’s heart.
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The views expressed in this article are the writers' own.
John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute.
