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Message
re: Lawfare: how is this defined, and how can it be (legally) stopped?
Posted on 4/27/24 at 6:58 am to SlowFlowPro
Posted on 4/27/24 at 6:58 am to SlowFlowPro
I get where you are coming from in terms of creating a settled or even a generally accepted clear definition. But, I would say that most of the posters, and probably even yourself see it as using the legal system to pursue things that otherwise should be inherently political.....or legislative.
As a society we have opted for gridlock at the federal level. For good or bad that is what we have dealt ourselves. As such, politically, consensus escapes us. Because we cannot come to consensus, both sides try to grasp for any advantage, sort of like trench warfare in WW I where we expend money and resources to great amounts to get a minimal advantage. Enter the use of of existing law as a surrogate for political and legislative action.
There's no agreed upon definition because it's mostly a reflexive thing. But generally the statutes used to engage in it have legitimacy and the accusations or indictments are grounded in a modicum of legitimacy as well. Example, Did Trump have Cohen pay hush money to Daniels (Clifford)? Yeah, probably. Have her sign an NDA? We have evidence of it. Is it on its face illegal? No. Was it done for political cover and insurance? Absolutely. Do politicians do this at least semi regularly? One would assume so. Could there be campaign finance violations.? Minimally, yes.
AHA!!! So there is a crime!!! Egregious corruption of the law! We are a nation of laws, not of men! We cannot let this stand.....lest the public finds out that so many in the political arena engage in this walking of a legal tightrope regularly. You saw it with Clinton, you saw it with Trump and Russia .
It's the new almost generally accepted way of expanding politics into the legal arena. If a person you really don't like is a big threat at the ballot box, you pull out all the stops to block him. Use the law to hinder your opponent at every turn.
It used to be that lawfare, if you want to call it that, to an extent was used to hinder policy or the enactment of new laws. Generally used for political gain. Hey I don't like a policy or new law, let's shop and see if we can find a sympathetic circuit like the Fifth or the Ninth and either delay it's implementation or overturn it.
This new way is troubling, and both sides use it. It is a political abuse of the legal system.
As a society we have opted for gridlock at the federal level. For good or bad that is what we have dealt ourselves. As such, politically, consensus escapes us. Because we cannot come to consensus, both sides try to grasp for any advantage, sort of like trench warfare in WW I where we expend money and resources to great amounts to get a minimal advantage. Enter the use of of existing law as a surrogate for political and legislative action.
There's no agreed upon definition because it's mostly a reflexive thing. But generally the statutes used to engage in it have legitimacy and the accusations or indictments are grounded in a modicum of legitimacy as well. Example, Did Trump have Cohen pay hush money to Daniels (Clifford)? Yeah, probably. Have her sign an NDA? We have evidence of it. Is it on its face illegal? No. Was it done for political cover and insurance? Absolutely. Do politicians do this at least semi regularly? One would assume so. Could there be campaign finance violations.? Minimally, yes.
AHA!!! So there is a crime!!! Egregious corruption of the law! We are a nation of laws, not of men! We cannot let this stand.....lest the public finds out that so many in the political arena engage in this walking of a legal tightrope regularly. You saw it with Clinton, you saw it with Trump and Russia .
It's the new almost generally accepted way of expanding politics into the legal arena. If a person you really don't like is a big threat at the ballot box, you pull out all the stops to block him. Use the law to hinder your opponent at every turn.
It used to be that lawfare, if you want to call it that, to an extent was used to hinder policy or the enactment of new laws. Generally used for political gain. Hey I don't like a policy or new law, let's shop and see if we can find a sympathetic circuit like the Fifth or the Ninth and either delay it's implementation or overturn it.
This new way is troubling, and both sides use it. It is a political abuse of the legal system.
Posted on 4/27/24 at 7:08 am to KiwiHead
quote:
Hey I don't like a policy or new law, let's shop and see if we can find a sympathetic circuit like the Fifth or the Ninth and either delay it's implementation or overturn it.
You don't see a difference between constitutional challenges and the bastardization of laws for politically targeted criminal prosecutions?
quote:
both sides try to grasp for any advantage
Please list the "lawfare" of the right...
There is no "both sides" here.
Other than Kyle Rittenhouse, BLM/Antifa suffered zero consequences for their 2020 rioting. Similarly, leftists that have OCCUPIED the Capitol routinely skirt prosecution. Yet, J6 "insurrectionists" languish in prison without trial, have received ridiculous sentences or are still being hunted down by the FBI to this day.
This is not a "both sides" issue. But, I suspect it is going to become one.
Posted on 4/27/24 at 8:43 am to KiwiHead
quote:
But, I would say that most of the posters, and probably even yourself see it as using the legal system to pursue things that otherwise should be inherently political.....or legislative.
But a lot of these alleged lawfare scenarios are civil in nature.
quote:
It's the new almost generally accepted way of expanding politics into the legal arena.
But how new is this? One of the foundational cases in the canon of US precedent is Marbury v. Madison, which was this exact thing.
I mean this goes back to Rome. Julius Caesar only hung around Gaul so long to avoid this very same stuff.
quote:
It is a political abuse of the legal system.
This then goes into the "how can you fix it"?
Take the Rudy Giulliani defamation case. Generally accepted as lawfare. It's, at heart, a pretty straightforward defamation case. How do you fix it?
Giulliani admitted to the defamation, even, so then they peel back the layer and retreat to the "he couldn't afford to defend himself" layer. How do you fix that across all civil cases? I mean hell, Bob Menendez's wife is claiming she can't afford lawyers, too. Is that lawfare now?
It's just a meandering, malleable definition that changes for each situation, and then within the situation (the above Rudy layer peeling).
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