One of the reasons Republicans were so reluctant to accept Donald Trump’s nomination in 2016 is that he was quite obviously a crook. “His business record reflects the often dubious norms of the milieu: using eminent domain to condemn the property of others; buying the good graces of politicians — including many Democrats — with donations,” editorialized National Review. Marco Rubio lambasted him as a “con artist.” The Wall Street Journal editorialized about Trump’s deep ties to the mafia and his fulsome praise of its work. (After Trump won the nomination, the Journal spiked a second editorial about his mob links.)
Ted Cruz warned that an upcoming probe into Trump University, a scam Trump used to bilk unsuspecting fans by promising business secrets, would expose him to legal sanction. “If this man is the nominee, having the Republican nominee, on the stand in court, being cross-examined about whether he committed fraud, you don’t think the mainstream media will go crazy on that?”
The precise scenario Cruz predicted is finally occurring. The Republican response, however, is very different. The suspicion with which they once viewed Trump’s business career has dissipated. He is no longer a sleazy mobbed-up con artist but an innocent victim of overzealous prosecutors. The word Republicans now use almost uniformly to describe the former president’s travails with the justice system is “lawfare.”
“Lawfare” means using the law as a weapon to get Trump. Conservatives ranging from the Trumpiest wing of the movement to the most Trump-skeptical — the ones who used to attack him as a crook — have all employed this term to describe the entire range of Trump’s legal problems, from his New York fraud conviction to his indictments in New York and Atlanta to both of Jack Smith’s federal cases.
The advantage of this catchall term is that it allows Trump’s defenders to ignore the specifics of Trump’s misconduct, or at least to analyze it in a highly selective way. There are indeed a couple instances in which Trump has faced legal challenges that are questionable (the attempt to disqualify him from the ballot based on the 14th Amendment) or downright weak (Alvin Bragg’s indictment over hush-money payments to Stormy Daniels). Conservatives tend to focus obsessively on these cases, and “lawfare” is a permission structure that allows them to use these cases to ignore or discredit the others, where Trump’s behavior is impossible to defend.
It is a similar rhetorical strategy to the way Republicans dismissed the entire Russia scandal as “Russiagate” (or, in Trump’s preferred phrasing, “Russia, Russia, Russia”). The Russia scandal consisted of innumerable strands and accusations, some of which (most famously the Steele dossier) did not pan out. But the sweeping frame allowed Trump’s defenders to ignore the voluminous evidence of guilt. No need to defend Trump pardoning the campaign manager who had a Russian intelligence agent as a partner when you can just denounce Russiagate as a hoax.
By positing that Trump is the victim of a plot, all evidence of his guilt can be turned around into evidence of the sweeping nature of the conspiracy to smear him. Eventually, Republicans came to believe Trump had been the victim of a deep-state plot to frame him. Trump appointed a prosecutor, John Durham, to prove this conspiracy theory, only for Durham’s efforts to fail.
The right’s “lawfare” claim has some of the same elements. It posits that a wide array of jurists and prosecutors are working secretly in concert at Joe Biden’s behest. Of course, this theory requires one to ignore massive amounts of criminal behavior by Trump. (Nobody forced him to, say, refuse to relinquish classified documents and then order a cover up!) It likewise requires you to ignore the fact that Trump’s main legal antagonist, the Justice Department, has charged or investigated numerous Democrats, including the president’s son.
The common thread between the right’s conspiratorial view of the Russia scandal and his legal problems is that Trump is, in fact, a very dishonest and corrupt person. The misconduct at the root of both dramas is not fantastical or unique. Russians have frequently manipulated or gained leverage over foreign politicians, though relatively few of them have been American. It is likewise not uncommon for politicians to commit crimes. The impression that all politicians are crooks — which Trump has exploited to justify his own corruption — is surely a wild exaggeration, but the stereotype exists in part because many of them are.
What’s unusual about Trump is not that a politician got into legal trouble, or even that a professional scammer went into politics, but that a political party allowed a crook to rise to its top. That, in turn, reveals the deeply unhealthy state of the GOP, not any extralegal steps being taken by his opponents.
Before he won the Republican nomination the first time, Republicans were perfectly aware that his decades of bilking customers and counterparties, lying to everybody, and surrounding himself with known criminals posed a series legal risk. Now that that risk has gone from theoretical to actual, and it is being shared by the Republican Party, they seem to believe it’s not fair to hold him legally accountable.
But no plot was necessary here. The law finally catching up to a lifelong crook is utterly predictable.
