Winning Isn't Anything- The New Legal & Political Reality for Politicians

Bradley W. Shumaker -

Most of us are familiar with the phrase “Winning isn’t everything.” While its meaning seems clear, the new reality, at least in the modern day legal and political world, is that a politician ultimately winning a legal issue in the context of a political legal warfare battle may not amount to much of anything in our present day. Today, a candidate who after months, and sometimes years, of fighting in the legal arena that may eventually win their case, doesn’t end up experiencing a “win” in any traditional sense of the meaning of the word.

The term “lawfare” did not gain common usage in American society until only a few years ago. The continued cultural and political weaponization of the U.S. legal system inevitably has required Americans to begin making more frequent use of this term. The concept of lawfare is anathema to the rule of law; the political ideal that all citizens and institutions are subject to the same laws, without exception. As it was first used, the word "lawfare" generally referred to the use of the law as a weapon, but the idea of making use of the laws and the court systems to go after political opponents appears to be a more recent version of the original concept. This particular iteration of legal warfare involves the use of legal systems and institutions to damage or delegitimize specific political opponents.

Early examples of lawfare in the United States tended to be more cultural and less political. One of the earliest examples of cultural lawfare in our country is the legal war against the unborn that was waged via the 1973 Roe v. Wade Supreme Court case. The decision (ultimately reversed by Dobbs in 2022) operated as a means to create a federal law without an act of Congress, and to defeat and dehumanize an entire class of people, namely the unborn/pre-born. This occurred long before the term “lawfare” was first used by anyone in this country. The war on crisis pregnancy centers is another example of cultural lawfare, which also involves an attack on the unborn. In this battle, attempts (some successful) were made to use city, state, and federal laws as a means to financially damage crisis pregnancy centers (i.e., charities which support women in their pregnancies, but do not provide abortion services) and to attempt to end their Pro-life activities.

Political Lawfare in a Presidential Election

As described above, a much newer version of the lawfare concept in the United States is political lawfare, which involves the use of the law and the courts against political opponents. The most recent and well-known example is the use of local (i.e., non-federal) courts as a means to damage or delegitimize a presidential candidate, one that appears to be currently ahead in the polls (albeit slightly) and who many believe is likely to win the next (free and fair) election.

The purpose of lawfare employed as a political strategy in a presidential election is to delegitimize an opponent or to deter an individual’s usage of their legal rights. It is used in an attempt to defeat an opponent by bankrupting them, or possibly to temporarily incarcerate them. At a minimum, it is used to deter an opponent from participating in certain activities (such as campaigning for office), but also serves to label the target as a “lawbreaker” or a “criminal.” Lastly, it is used simply as a distraction, which provides an important edge to the party that is employing the law as a weapon against a specific individual.

Until recently (for the 2024 presidential election), political lawfare strategies have not been employed to any significant extent in a presidential election in our country. While from a resources perspective it is true that both sides may be relatively equal in that both have access to large amounts, it is important to appreciate that the taxpayer-funded resources which the side currently in power has access to are virtually unlimited. This gives the present administration a clear advantage on the battlefield. Basically, it creates an un-level playing field, and favors the aggressor and the party initiating the fight.

While the party bringing an action in courts surely does want to win the specific case that they have taken the time to meticulously craft, they look at the ultimate outcome as somewhat less relevant. Even though the case against their political opponent may not ultimately succeed, if it does, all the better. Also, the more cases which are filed, the more likely that one might actually lead to a permanent win. Instead, however, the true main purpose is to tie up your opponent’s time and resources, and to burden your opponent with negative press in the public sphere, in order to create a public relations victory, or possibly a fundraising benefit. Moreover, the mere existence of the trail itself creates talking points that can be used during the course of the election cycle for your side's benefit. And again, the more cases filed, the better, as your opponent can be claimed by your team to “look and smell” like a “criminal,” all the while ignoring our historic understanding of “innocent until proven guilty” (which may very well now be a dead concept).

Candidate Donald Trump

More than a few legal actions have been brought against former President Trump by his political opponents during the course of this election. And by making appropriate use of the appeals process, it is true that Mr. Trump could ultimately win his recent case in New York, and possibly all of the various cases that are being brought against him.

But what good is that?

If the other side succeeds in distracting Trump and eating up his time, money, and energy; and further succeeds in sullying his reputation up to and until the election in November, then they will have no doubt achieved a large part of their goal and may potentially obtain ultimate victory in the upcoming presidential election. For them, most importantly, winning the next election will provide control of the Executive branch and all of its agencies for (at least) another four years.

So What Happens Next?

The use of legal systems and institutions to damage or delegitimize opponents is something that has surfaced on a large scale in politics only recently in the history of our country. After trying almost everything under the sun to destroy or discredit Donald Trump for the past eight years or so, the opposing side has decided on a relatively “last minute” strategy of using certain purposefully selected local, and in some cases federal, courts to go after their main political opponent, a strategy that has never been employed before in a U.S. presidential election.

Even if Donald Trump is ultimately found innocent in any criminal proceeding, or is vindicated in any civil trial, he and his campaign will have lost significant amounts of time, money and energy. And even in the event that he might succeed in receiving full reimbursement of his legal costs in any of the various cases, Trump as a candidate is still out his time and energy, and his reputation will continue to suffer despite the “win.”

All may not be lost, though. There may be one significant potential upside for former President Trump as the victim of this political lawfare strategy; it just might motivate his current supporters to increase their support in terms of both time and money, and may lead multitudes of new supporters (Republicans, independents, Democrats, Blacks, Hispanics, Asians, Jews, Muslims and others) to decide—even if it is only reluctantly—to back his candidacy for president.

Only time will tell…

Photo Credit- Politico