The Problem with "Lawfare"

it ends with "speak, hands for me"

Ultra-right MAGA insurrectionists have, in the past few years, resorted to the notion of “lawfare,” particularly as used by the Deep State against Donald Trump.

“Lawfare”is not new. La Wik has a piece on it, quoting Charles J. Dunlap Jr’s definition from 2001:

Dunlap defines lawfare as "the use of law as a weapon of war".

Then La Wik says that

[Lawfare] may describe a tactic used by repressive regimes to label and discourage civil society or individuals from claiming their legal rights via national or international legal systems.

There is not a whisper about our Democratic and liberal and NGO and activist friends using lawfare to oppress ordinary middle class Americans and conservatives and Republican politicians like Donald Trump.

So we may assume that the use of Lawfare to attack Trump with various district attorneys and Special Prosecutor Jack Smith doesn’t seem remarkable to our Democratic friends. So they aren’t disturbed by the use of Section 3 of the Fourteenth Amendment to make war on Republicans:

No person shall… hold any office, civil or military… who… shall have engaged in insurrection or rebellion against the [United States].

I wonder who was the person that said: hey, let’s get Trump and the J6 protesters with the Fourteenth Amendment! I wonder, because there doesn’t seem to me to have been any public discussion of the use of the Fourteenth Amendment. All of a sudden, it seems to me, our Democratic friends were all talking about “insurrection.”

I mean, our Democratic friends have been indulging in “peaceful protest” for the past 50 years as a normal means of influencing public opinion. These protests have often involved violence and property destruction. Sometimes they have involved the invasion of government buildings.

Strictly speaking, I imagine, you can make a good argument that every political action that goes beyond speeches on the hustings amounts to a “demonstration” or show of force, and any show of force is really saying look what we can do if we were to get serious. And you tell me when a “show of force” becomes an “insurrection.”

OK, I get it. To our liberal friends any objection to their rule of about 100 years is a threat to their regime, and is experienced by them as “insurrection.”

So let us remember von Clausewitz and his maxim:

War is the continuation of policy with other means.

So when it is proper to describe “the continuation of policy with other means” as “insurrection?”

I would call it the last step in the escalation of politics to war.

Peaceful protest is the continuation of policy with other means.

Mostly peaceful protest is the continuation of policy with other means.

Rioting is the continuation of policy with other means.

Insurrection is the continuation of policy with other means.

Civil war is the continuation of policy with other means.

In other words, I would say that all political acts beyond words on the hustings are in fact an escalation of disagreement towards the actual use of force.

Or, if we use Nazi jurist Carl Schmitt’s Concept of the Political as the distinction between friend and enemy, the point of the enemy is “that in extreme cases conflicts with him are possible.”

What our Democratic friends are saying with their invocation of “insurrection” is that for opponents of the regime, from Trump on down, any action by him or his supporters that goes beyond speech on the hustings amounts to “insurrection” and will be suppressed.

In other words, the rules are different for you and me.

This is a gigantic error. Leaving aside the question of justice, the whole point of the panoply of law and politics and elections and voting is to give the impression that the rules are the same for the supporters of the regime and for their opponents. In real life, of course, the supporters of the regime always have an advantage.

But the bigger the gap between the rules for the regime supporters and the rules for the regime opponents the greater the chance that some Cassius will declare: “Speak, hands for me.”

Do you understand that, dear liberal friends?