Legal Docket: Law as a political weapon

NICK EICHER, HOST: It’s Monday morning, September 18th and you’re listening to The World and Everything in It from listener supported WORLD Radio. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

AUDIO: “For the fourth time this year, Former President Donald Trump is defendant Donald Trump.” “For the third time this year Donald Trump was arraigned in a courtroom, this time he’s facing four criminal charges.” “We’re now witnessing a former president being indicted on federal charges. The federal level. He can still run for president. Nothing stops him.” “Ah. This is a case of political persecution. Had he not been running for the presidency, he would not have been indicted.” “Today, an indictment was unsealed charging Donald J. Trump with felony violations of our national security laws as well as participating in a conspiracy to obstruct justice.”

REICHARD: For many people, the successive indictments against President Trump are evidence of misuse of the justice system. The term you might hear to describe that is “lawfare,” or legal warfare.

EICHER: And so we called up a legal expert to understand more fully the use of that second meaning.

Hans von Spakovsky is an attorney and an authority on the rule of law, government reform, civil rights, and election law.

We should note that President Trump appointed von Spakovsky to an advisory commission on election integrity in 2017. Now he’s with the Heritage Foundation, a conservative think tank in Washington.

REICHARD: Let's just get right to it. What is lawfare?

HANS VON SPAKOVSKY: Lawfare is the use of the courts not for legitimate legal reasons to right a wrong or enforce a contract, to criminally prosecute someone who's actually violated the law. Lawfare is the use of the courts for political reasons. Everything from political targeting, to go after political opponents, to trying to achieve in the courts what you have been unable to achieve through the democratic process, through state legislatures. And it is frankly a real threat to I think the stability of the country and it is anti-democratic.

REICHARD: Do we have examples of that going on today?

VON SPAKOVSKY: Unfortunately, we have numerous examples, and it's really today that the use of lawfare has really accelerated. One of the examples of it is we have people who are concerned about climate change who, because they are unable to get Congress or state legislatures to pass laws that they think are necessary to deal with this issue, they have seized on a legal cause called public nuisance. You know, public nuisance lawsuits are things like, you know if people live close to a factory that's putting out noxious fumes, they have the ability to file a what's called a public nuisance lawsuit against the factory for doing that. But what is now going on is you have public nuisance being used to try to target everything from oil companies to other companies because the individuals filing the suits claim, oh, you know, their products and what they're doing is the major cause of climate change and therefore they should pay up and owe us billions and billions of dollars. That is an absolute abuse of public nuisance laws. Most of these lawsuits have been thrown out. The judges have recognized that, but they are persistent with this.

Another example of lawfare is the fact that a number of cities recently have sued a number of car companies claiming that they design or build their cars so that they are theft prone. In other words, these cities, instead of dealing with their chief responsibility which is to prevent crime, to find the people who violate the law and for example steal cars, instead of doing that, they go after the car companies and claim that they're responsible for this. That is lawfare. There are numerous other examples of this, but like I said, it's really a threat to our system because on the one hand it's anti- democratic. People trying to achieve through the courts what they can't convince legislators to do. And on the other hand, it's cities and other officials trying to... escape their responsibility by blaming this on someone else.

REICHARD: Mm-hmm. Do you think the use of lawfare is more pernicious now than it was in the past?

VON SPAKOVSKY: Yes, this is really a relatively new phenomena. I don't think if you go past 10 years, you don't really see cases like that. Another prime example of this obviously are the criminal prosecutions that have been launched against, for example, political opponents of the current administration. Many of the prosecutions that have been filed are prosecutions that are going after individuals for exercising protected First Amendment rights. And that also is extremely dangerous.

REICHARD: What would be an example of that? Are you talking about people who had legitimate concerns about whether the election was conducted with integrity? Is that what you mean?

VON SPAKOVSKY: Yeah, look, what folks need to understand is many people have raised questions about and said they thought there was cheating or that an election didn't come out the way it should. Not just Donald Trump. Stacey Abrams in Georgia. Hillary Clinton talking about the 2016 election. Whether they're wrong or right is irrelevant. They have a First Amendment right to speak out, even if they are wrong. And to criminally prosecute individuals for doing that is a violation of the First Amendment. Not only that, but keep in mind that, for example, in the criminal prosecution going on down in Georgia, the prosecutor there has taken the lawyers who were working for Trump and doing what they're supposed to do, vigorously represent their client, and has listed them as criminal co-conspirators. That is a threat to our entire justice system and the way defendants, when they are being targeted by the government for prosecution, have a right to legal representation and due process and their lawyers... cannot be criminally prosecuted because somewhere down the road, for example, a jury says, you know what, that particular defendant, yeah, he was guilty. Well therefore, obviously also his lawyer was guilty too because he was claiming that his defendant was innocent. This is taking us down a road that will frankly destroy... the rule of law in this country.

REICHARD: Odd question here, but it's not actually illegal to use lawfare, or is it?

VON SPAKOVSKY: Well, it should be, but the courts aren't policing this enough. Most court systems have a rule on what's called frivolous lawsuits. That if you file a lawsuit that you know is frivolous, you can be sanctioned for doing that. But unfortunately, judges are often too reluctant to use that rule to go against lawyers and others who do that. There is also disciplinary proceedings that can be used against lawyers when they really do something wrong. And the best example that I can give you is about 10 years ago, remember, a local prosecutor in North Carolina. attempted to criminally prosecute members of the Duke lacrosse team over supposedly a gang rape of a local woman. That turned out to be a total hoax. The woman had made this story up, it was completely false, and the prosecutor knew that, knew that, and yet continued with the prosecution because he was politically ambitious, district attorney, and again, he thought this was his ticket to fame. And fortunately, the bar association in North Carolina figured out what was going on, and he was not only disciplined, but he eventually lost his bar license. But unfortunately, too many bars are reluctant to take the actions needed to properly police the legal system.

REICHARD: Not to mention ruining the lives of those young men in the process. So aside from courts doing a better job policing this and the public reigning in the power of local prosecutors, what else? What else could we do to prevent the use of lawfare?

VON SPAKOVSKY: Well you know there's always public pressure. Public pressure is very important and the ballot box is very important. In cities for example the city officials are refusing to do something about rising crime rates, rising car thefts and instead try to sue their way out of that by evading their responsibilities? People should take note of that and when those individuals come up for reelection, they should vote them out of office and get individuals into these kind of local elected positions they're actually going to do something about these kind of problems.

REICHARD: Do you think there's ever a legitimate use of lawfare? I'm thinking of people who believe a particular politician is going to bring down the Republic. In their mind, taking that person out of the playing field is legitimate in their minds for their greater good.

VON SPAKOVSKY: No, because that brings us down to the way the so-called legal systems worked, for example, in the Soviet Union under communist control or work today in Red China. There, the legal systems were used to go after individuals not because they broke the law, but because they were considered political adversaries of the administration, they were considered political adversaries of the whole system there. And that's just wrong. You know, if you don't like a particular candidate, fine. Defeat him at the ballot box. But don't use the legal system to criminally prosecute him or go after him through the court system.

REICHARD: Okay. We've talked about the definition of lawfare, we've given examples, we've talked about solutions, anything else?

VON SPAKOVSKY: Well, the bottom line here is that people need to understand what really makes us different, America different, is that this country really was founded on and is based on the rule of law. And the rule of law is supposed to be evenly and objectively applied to everyone. We are not supposed to be the type of third world country, the type of dictatorship. where the law is used not for justice, but as a political weapon. And unfortunately, those who are engaging in lawfare are taking us down that route.

REICHARD: Hans von Spakovsky is with the Heritage Foundation. Thank you so much, appreciate your time.

VON SPAKOVSKY: Thanks for having me.

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