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Democrats prepare for more lawfare ahead of Trump 2.0

If you can't beat him in a vote, beat him in court. Credit: Getty

June 19, 2024 - 8:00pm

A glossy spread in the New York Times has profiled the progressive groups preparing for a second Donald Trump administration. Their weapon of choice appears to be lawfare.

The American Civil Liberties Union is reportedly “drafting potential legal filings” in anticipation of Trump policies on issues such as abortion, immigration and protests. The group Democracy Forward is going a step further and preemptively “recruiting sympathetic plaintiffs who would have legal standing in court”, according to the Times.

Beyond the Beltway, blue-state lawyers “have been quietly studying the playbooks of their Republican counterparts in Texas and Florida, whom they view as being most successful at attacking and obstructing the Biden administration”.

It’s true, of course, that conservative groups are fighting Joe Biden in court, and are busy laying the groundwork for a second Trump administration. They tend to be cast in less neutral terms.

If, for example, Trump were to embark on a programme of “mass deportations”, as the ACLU fears, the organisation’s efforts to undermine him would also undermine the will of American voters. Not only would they have elected him president, a new CBS/YouGov poll found a clear majority of registered voters — and a majority of Hispanics — support a national deportation programme aimed at all migrants living in the US illegally.

Whether or not one agrees with Biden, his own administration agrees the surge of border crossings during his presidency is without modern precedent. This is why the Right is arguing on behalf of an unprecedented response. Only the Left, though, dodges accusations of extremism in the press.

When Trump broached the idea of using troops to quell violent protests in 2020, most Americans sided with him. The former president is so irked by the GOP’s anti-abortion streak — conscious of its unpopularity — that he’s proactively pledging to leave the issue to the states.

It would be foolish to dismiss Trump as a hapless centrist with no real designs to target the Left or abuse power. It’s entirely possible we’re treated to another round of conspiracy theories about Hugo Chávez and electronic voting machines if Biden wins in November. After all, the Supreme Court’s bump stock ruling last week highlighted overreach from Trump’s first administration.

But it’s also possible that Trump’s precedent-shattering rhetoric would never have made it to the convention floor in 2016 had his predecessors on both the Left and the Right not themselves shattered so many precedents along the way. Then, even more importantly, acted as though it was all totally normal and that anyone who disagreed was a kook.

So welcome to the doom spiral. As outlets such as the Times continue treating the Right’s lawfare as a dark conspiracy and the Left’s as a campaign to save democracy, political use of the courts will only escalate. This doesn’t absolve partisans of their responsibility to constituents and the Constitution. It does, however, mean they’ll increasingly feel forced to turn to the logic of “desperate times, desperate measures”, perhaps rightfully assuming that the only way out is through.

If the placid Times story is any indication, it’s not clear America’s political elite is prepared for what that unleashes.


Emily Jashinsky is UnHerd‘s Washington D.C. Correspondent.

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Jim Veenbaas
Jim Veenbaas
1 month ago

The American political system at the federal level is almost broken beyond repair. Trump is a symptom of this problem, not the cause.

Steve Jolly
Steve Jolly
1 month ago
Reply to  Jim Veenbaas

Well said. Thank God for federalism and the wisdom of the founding fathers not to vest all power in a single national parliament or other elected body but to create the arcane and dysfunctional but resilient system we have. They sacrificed efficacy and efficiency for the sake of balance and stability, and that has mostly worked. I’m convinced almost any other arrangement would have broken long ago and we’d have several nations occupying the present USA.

Graham Stull
Graham Stull
1 month ago
Reply to  Jim Veenbaas

I agree. He’s a symptom, not the cause. But also: he’s not the cure.
A second Trump term will only make things worse.
If they don’t bump RFK off, he’s might make a difference. Otherwise, the decline is likely to continue.

Samuel Ross
Samuel Ross
1 month ago

When was the last time you saw the term ‘far-left’ in the NY Slimes? Answer: Never. (Hint: They ARE the ‘far-left’, but don’t realize it.)

Benedict Waterson
Benedict Waterson
1 month ago
Reply to  Samuel Ross

The possibility of far-left extremism seems never to have even occurred to a lot of people.
If ‘extremism’ = unprecedented social experiments with potentially far-reaching negative results, then perhaps the mainstream has been radicalized into supporting forms of extremism.

Samuel Ross
Samuel Ross
1 month ago

Indeed. Common sense is rather uncommon, isn’t it?

UnHerd Reader
UnHerd Reader
28 days ago
Reply to  Samuel Ross

Right wing is skin headsets, jack boots, and SS tattoos, not conservatism

Martin M
Martin M
1 month ago

At least Trump has the sense to realise that opposition to abortion is a vote-loser for the GOP, and is trying to distance himself from it.

Carlos Danger
Carlos Danger
1 month ago
Reply to  Martin M

That’s true. It bothers me that so many in the US take an extreme position on abortion on the left or the right, when most democratic countries in the world have a compromise position. Abortion freely available the first 10 to 15 weeks of pregnancy, then increasing restrictions thereafter. That roughly corresponds to when an embryo becomes a fetus.

Thomas Wagner
Thomas Wagner
1 month ago
Reply to  Carlos Danger

I’m still trying to figure out where I stand on the issue. On the one hand, I don’t like abortion. On the other hand, I don’t like anti-abortionists. I’m really in a cleft stick here.

Warren Trees
Warren Trees
1 month ago
Reply to  Thomas Wagner

They are called pro-life, not anti- abortionists. That’s a term the left invented to make them sound evil. If the belief is that killing unborn children should be a human right, then there’s little hope for society.

Carlos Danger
Carlos Danger
1 month ago
Reply to  Thomas Wagner

The way I look at it is this. I side with the pro-abortionists for the first 10 weeks of pregnancy. Up until then the fertilized egg and then embryo are not really human life. The fertilized egg is just a simple cell too tiny to see, and though it grows during those ten weeks to be the size of a strawberry, it’s only vaguely human in shape. It can be easily killed and removed from the womb as just discarded tissue, either at home with drugs or in a clinic or doctor’s office.
After that time I gradually shift over to side with the anti-abortionists. An embryo at 10 weeks turns into a fetus that starts to look human, with an oversize head, tiny hands and feet, and developing sex organs. It’s hard not to call it human life. As it grows, the fetus becomes harder to kill and remove, and when you do there are body parts to deal with. Those abortions are usually done in a hospital.
I don’t like the way many pro-abortionists think that society has no moral interest in protecting fetal life, that it’s all up to the mother. I don’t like the way many anti-abortionists think that even a fertilized egg is human life that should be protected, for religious reasons.
I like the middle ground.

Tanya Kennedy
Tanya Kennedy
28 days ago
Reply to  Carlos Danger

Although I side with Trump that we need a compromise, I am fascinated by your stance that up until some magical time of 10 weeks what we are discussing is not a living human life but until then it probably is just a dead tomato. And then presto magico the dead tomato becomes a living human life.
Very interesting.

Douglas Proudfoot
Douglas Proudfoot
28 days ago

Democrats view the Constitution as optional. Here are some examples.

The president must take care that the laws be faithfully executed. He’s not doing that for immigration law. Constitution mandates Senate trial for every impeachment. Chuck Schumer didn’t do one for Mayorkas.

According to the Constitution, all US spending must be approved by Congress. President Joe Biden just cancelled billions in student debt, obligating the federal government to pay billions without Congressional authorization.

The 1st Amendment doesn’t allow federal “suggestions” for censorship, but the FBI & CIA both made huge numbers of such suggestions. The FBI paid Twitter $3 million for censoring things. The 1st Amendment allows petition for greviences, but Fanni Willis says it’s a crime if Trump does it.

NYC Judge Abena Darkeh said “Do not bring the Second Amendment into this courtroom. It doesn’t exist here.” She’s a Democrat.

The 4th Amendment guarantees specific search warrants. The search warrant for Mar-A-Lago was very general. It read: “Any goverment and/or Presidential Records created between January 20, 2017, and January 20, 2020.”

The Sixth Amendment right to counsel is actively thwarted for Trump and many high profile associates. Democrats attack Trump lawyers after the cases they are involved in with disbarrment proceedings, both to remove the targets and deter others from working for Trump. John Eastman was disbarred by Democrats in California for providing the president of the US with legal advice. Providing legal advice to an unpopular client isn’t illegal.

The 6th Amendment also requires the accused “to be informed of the nature and cause of the accusation.” Bragg’s Trump indictment didn’t specify what crime Trump concealed with his bookkeeping “fraud.”

The 8th Amendment prohibition of excessive fines was violated in Trump’s NY fraud case, where $464 million was awarded to the state of NY. The suit against Alex Jones awarded the plaintiffs $1.5 billion of Jones money, another excessive fine.