Lawfare Defined, and How to Tell a Prosecution From a Campaign Tactic

Every politician who has ever been indicted has said the case was political. Some of them were right. That is the problem with the word "lawfare": it is the first thing a guilty man says and also, sometimes, the correct description of what happened to an innocent one. A word that fits both cannot be allowed to do the work of an argument.

So let me do what the word's users almost never do. Define it. Then give you a set of tests you can apply to any case, from either party, without knowing in advance whose side you are on. A test that only convicts your opponents is not a test. It is a mood.

Defining the Term

The word "lawfare" was popularized in a military context. Charles Dunlap, a U.S. Air Force lawyer, used it in the early 2000s to describe the use of law as a weapon of war, a way of achieving a military objective through legal means that could not be achieved by force. The term has since moved into domestic politics, where it means something like this:

Lawfare is the use of courts, prosecutors or legal process to achieve a political result that could not be won at the ballot box or in the legislature.

Three words in that definition do the work. "Use" means it is a tool, chosen on purpose. "Political result" means the aim is to remove, humiliate, bankrupt or disqualify an opponent, not to vindicate a law. And "could not be won at the ballot box" is the heart of it: the legal process becomes a substitute for persuasion.

Now an important boundary. Lawfare is not the same as any prosecution of a politician. Politicians break laws, and a free country prosecutes them. A republic where public officials cannot be charged is an aristocracy. The conservative position has always been that no one is above the law, and that includes officials we like. The claim is narrower: that some cases are brought for the wrong reason, and that you can often tell.

The Steelman: Every Prosecution of a Politician Looks Political

Before the tests, the opposing case at its strongest. A prosecution of a prominent person will always be accused of being political, because prominent people always have political enemies, and the prosecutors who charge them are human. If we treat the accusation of lawfare as a reason to stop a case, then we have created an immunity for the powerful. Worse, if the standard for "lawfare" is that the defendant's side believes it, every defendant qualifies. The evidence of the crime should decide, not the identity of the accused.

I agree with every word of that. It is also the reason the word needs a definition with tests. If you cannot say what would count as evidence of a political prosecution, you are not making an argument.

Four Tests

None of these tests proves a prosecution is political. Each is a warning light. The more that light up, the more reason for suspicion.

Test One: A Novel Legal Theory

A prosecution built on a statute applied in a way no prosecutor has ever applied it before is a warning light. Criminal law is supposed to give people notice of what is forbidden, and the principle that a person may not be punished for conduct no one told him was a crime is among the oldest in the law. When a prosecutor reaches for a stretched reading of a vague statute, he is asking a jury to punish someone for conduct that was legal until the indictment arrived.

The Supreme Court has repeatedly thrown out convictions that rested on stretched readings. In McDonnell v. United States (2016), it unanimously vacated the bribery conviction of former Virginia Governor Bob McDonnell, a Republican, holding that the government's definition of an "official act" was too broad. In Kelly v. United States (2020), it unanimously reversed the convictions of a former deputy chief of staff to New Jersey Governor Chris Christie and a former Port Authority official in the Bridgegate lane-closure case, because the scheme was not one to obtain money or property by fraud. Those are cases in which the defendants were Republicans, and the lesson is bipartisan: a statute is not a blank check.

Test Two: Selective Enforcement

The second warning light is that the same conduct, by people in different political camps, is treated differently. The Constitution prohibits this. In Yick Wo v. Hopkins (1886), the Supreme Court held that a law that is fair on its face but applied by officials with an evil eye and an unequal hand violates equal protection. The test is comparative: who else did this, and what happened to them?

You cannot apply it from a hunch. It requires examples. A person who claims he is being singled out should be able to name others who did the same thing and were not charged, and the claim should survive the counterexamples. If the answer is that the comparison cases are different in important ways, the claim fails. If the comparison cases are the same and the charging decision differs, the warning light is on.

Test Three: Timing Tied to Elections

The third warning light is the calendar. The Justice Department has long followed an unwritten practice of avoiding overt investigative steps that could affect an election close to the vote. The norm is not a statute and not a rule of procedure, and its details have been argued about by Democrats and Republicans alike. But the logic of it is plain. A prosecution that arrives, or a charge that is announced, in the weeks before an election has an effect on the election whether or not it was intended. The test is whether the timing can be explained by the evidence and the statute of limitations, or only by the calendar of the campaign.

A fair-minded person admits that timing is the weakest of the four tests alone, because cases have to be brought sometime, and an election is always coming. But when it is combined with other warning lights, it counts.

Test Four: Charging a Status Rather Than a Crime

The fourth warning light is the oldest. A legitimate prosecution charges an act: he took this money, he signed this document, he made this false statement. A political prosecution charges a status: he is the leader of the opposition, he is dangerous, he is the kind of person who should not be in office. The history here is instructive. The Sedition Act of 1798 made it a crime to publish "false, scandalous and malicious writing" against the government, and it was enforced against newspaper editors and a Vermont congressman, Matthew Lyon, who was convicted in 1798 and jailed, and then re-elected to Congress from his cell. The act was aimed at supporters of the opposition party, and when Jefferson took office he pardoned those convicted under it. That is a case of prosecuting people for who they were and what they said, and the voters said what they thought of it.

Applying the Tests to the Record

A test is useful only if you apply it to cases where you know how the story ended. Here are several, and notice that the tests give mixed answers. That is what a good test does.

The independent counsels. We covered the structure of the independent counsel law in Scalia's Lone Dissent in Morrison v. Olson Saw the Independent Counsel Mess. The law did not require a political motive to produce political results. It created a prosecutor whose assignment was one person, with no supervisor and no other docket. Under the four tests, the problem was structural: the investigations tended to expand, and the narrowness of the target invited the pursuit of whatever could be found. Congress let the law lapse in 1999 with support from both parties.

Ted Stevens. The senator from Alaska was indicted in 2008 on false-statement charges relating to gifts and renovations at his home, was convicted in October 2008, and lost his seat narrowly in the election that followed. In April 2009 the Justice Department moved to set the conviction aside because prosecutors had withheld evidence that should have gone to the defense, and the judge dismissed the case. Here, the timing test lit up, with a conviction days before the election, and the fairness test did far more: it was the withheld evidence that destroyed the case. We tell that story in full in Ted Stevens, Tom DeLay and Rick Perry Were Charged, Then Cleared.

Tom DeLay. The Texas congressman and House majority leader was indicted in 2005 by a county prosecutor in Austin on a campaign-finance charge, and was convicted in 2010. An appellate court reversed the conviction and entered an acquittal in 2013, and the state's highest criminal court affirmed in 2014. Here, the novelty test lit up: the courts held that what the state had proven did not amount to the offenses charged.

Rick Perry. The Texas governor was indicted in 2014 for vetoing funding for a state office whose director had been arrested for drunk driving. The prosecution ended after the Texas Court of Criminal Appeals held that the prosecution of a veto violated the separation of powers. Here, the test that lit up was the status-and-act test: the act charged was an exercise of a constitutional power.

The tests are not partisan, and they do not tell you that every case against a Republican was lawfare. The cases against officials in both parties include convictions that held up. The tests give you a way to ask, in each case, what the prosecutor is doing and why.

The Warning for Conservatives

There is an uncomfortable half to this argument, and honesty demands that I say it. Our side has also called for prosecutions we would have found unacceptable if directed at us. Chants for jailing political opponents have been heard at rallies of every persuasion. If we believe the tests above, we have to apply them to our own side's calls for prosecution, and we have to be willing to say that a case against a Democratic official is a bad one when it fails them.

That is the difference between a principle and a grievance. A principle says: here is the standard, and it applies to everyone. A grievance says: our people were treated unfairly, and theirs deserve worse. The Founders wrote the Bill of Rights, including the Fifth and Sixth Amendments, for the unpopular defendant. They knew that a procedure that protects only the popular is no protection.

The answer to lawfare is not counter-lawfare. It is the discipline of rules that apply equally, and of voters and judges who insist on them. For the relevant constitutional guardrails, see The Rule of Law Is Older Than the Constitution, From Magna Carta to Marbury, and for the question of how a free people keeps its prosecutors honest, What the 2018 Kavanaugh Hearings Taught About the Presumption of Innocence. The oversight page tracks how Congress checks the executive.

How to Use This

A practical checklist, in the order I would apply it:

1. Read the charge, not the headline. What act is alleged, and what statute does it fall under?
2. Ask whether the statute has ever been used this way. If you cannot find a precedent, the theory is novel.
3. Find the comparison cases. Who else did this, and what happened?
4. Check the calendar. When were the key steps taken, and what was the election schedule?
5. Wait for the court. A case that survives a motion to dismiss and a trial in front of a jury is not a campaign tactic merely because someone says so. A case that collapses on appeal, or on withheld evidence, has told you something.

The point of the tests is not to excuse anyone. It is to make sure that when we call something lawfare, the word means something, and that when we say a prosecution is legitimate, we have checked.

The case in brief

1. Lawfare is the use of courts and prosecutors to achieve a political result that could not be won at the ballot box, and it is distinct from the ordinary prosecution of officials who break the law.
2. Four warning lights help tell the difference: a novel legal theory, selective enforcement, timing tied to elections, and charging a status rather than a crime.
3. Applied to the record, the tests give mixed answers: the independent counsel structure invited expansion, the Stevens case fell apart on withheld evidence, and the DeLay and Perry cases failed on appeal.
4. The tests must be applied to our own side too, because a principle that protects only the popular is no protection at all.
5. The remedy is equal rules, informed voters and courts that hold prosecutors to their burden.

What you can do: the next time you hear a politician called the victim or the target of a prosecution, apply the four tests in writing and check the charging document or the court's opinion before you share an opinion.