Democrats' Lawfare Strategy Failed. Why Would It Work for Trump?

with John McWhorter

Democrats have tried to use the courts to delegitimize Donald Trump. They’ve gotten him convicted on felony charges. They’ve tried to bankrupt him through the courts. These efforts were not only wrong, they turned out to be bad strategy. It all backfired, as many predicted it would. Trump’s prosecution—and his mugshot—only amplified an image he himself had consciously created: the rebel whose legal infractions are an expression of disdain for a corrupt system rather than mere graft and greed.

In prosecuting Trump, Democrats did him the favor of transforming him into an outlaw, a classic American type—Jesse James, Clyde Barrow, Donald Trump. He emerged from the courtroom a felon, yes, but a romantic one in the eyes of his supporters, a perception cemented by his bloody, fist-pumping reaction to a failed assassination attempt. As they say, you can’t buy that kind of publicity, and Democrats seemed more than happy to provide it. Their belief that lawfare could solve the Trump problem was a tacit admission that they could not compete with him in the voting booth, where it really counted.

Trump will soon take office, and he’s promised to respond to Democrats in kind by using the executive branch to prosecute his political opponents. As I say in this clip, I think it’s a bad move. It was wrong when the Democrats did it, and it will be wrong if Republicans do it. Escalating the conflict could have disastrous consequences. But it would also, I think, repeat the Democrats’ strategic error. Trump has capitalized on the perception that he is a triumphant underdog. Video of Democratic politicians in courtrooms or even jailhouses would dispel that perception. If Trump makes good on his promises, Democrats could then claim it is they who are being persecuted, and it would be hard to deny.

Trump won the popular vote and he won the electoral vote. The electorate put their chips down on him. If he wants to maintain the image he’s worked so hard to construct, and if he wants to do what’s best for the country, he’ll forgo “vengeance.” If he can get his policies through without lawfare, he’ll have proved he really can do better than his opponents. But if he relies on it, he’ll be no better than they are.

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This is a clip from the episode that went out to subscribers on Monday. To get access to the full episode, as well as an ad-free podcast feed, Q&As, and other exclusive content and benefits, click below.

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GLENN LOURY: This next question is from Cara. She asks,

Glenn, do you seriously think that the Democrat lawfare will ever stop unless there's mutually assured destruction? If they couldn't handle return fire, the Democrats shouldn't have started the war. What they did was wrong. But there will be no incentive for them not to repeat it unless they are taught a very hard lesson. I'm sick of people urging one side to rise above the fray, when we know bloody well the Dems, unchecked, will continue their weaponization of the courts.

Okay, and I'm going to answer that I don't agree with you, Cara. I think the high road is better than the low road. When they go low, we go high. Who said that? I think that was Michelle Obama.

I think it's the institutions that we need to keep our eye focused on, not the particular outcome of any election cycle. I think the Democrats use of the courts to try to discredit, disqualify, and defeat, prevent from being able to run and then, if to run, to cover with slime so that he would be unelectable—Donald Trump. A felon. [Alvin] Bragg, the DA in New York City got [34] felony convictions out of the flimsy case that he brought under questionable conditions before a jury in Manhattan. Or Letitia James trying to bankrupt the guy with, again, questionable use of her office and prosecutorial powers. Financial mismanagement and inappropriate financial claims of the Trump Organization.

I think you don't want that. That corrupts institutions. You say, will the Democrats ever stop? I don't know. That's for the Democrats to decide. I think people who were appalled by their behavior shouldn't encourage behavior in the same vein. I think that's a race to the bottom. Nobody wins.

I don't know whether they would stop or not. I doubt that engaging in the same behavior would be an effective deterrent. I think it would be actually another step down a slippery slope that goes all the way down, in which all bets are off and everybody is slinging mud at each other.

Here's an analogy. You're in the early stages of nuclear war. Somebody uses a tactical nuclear weapon on the battlefield and they win the battle. Or they lose the battle. Another battle comes along. The opportunity to use or not use a tactical nuclear weapon presents itself. We'll make sure that they don't use another one by using ours now. Maybe it will have the effect that you anticipate or maybe it'll have exactly the opposite effect, and it'll push us yet another step up the ladder of escalation in the use of nuclear weapons, legitimizing, not delegitimizing, their use.

Two wrongs don't make a right. So I would say no. Just like Obama didn't want to go to prosecute Dick Cheney and George W. Bush after he got into power in the wake of the questionable use of American security institutions during the post-9/11 environment, on the theory that that's not the game that we want the government of the United States to be in, coming after formally serving officials for arguable judgments that they made while in office. Likewise here, I don't think it's a good idea.

JOHN MCWHORTER: That question was for you. I know this is an unpopular view, but I saw those things—yes, there was a deliberateness about it—as institutions trying to reverse the possibility of something extremely disturbing and potentially catastrophic happening.

And sometimes, even when you're running a big, giant nation like this with rules, a little improvisation might be necessary when we're talking about the return of somebody who—the daily calendar of Trump misdeeds—is talking to the president of Ukraine, Zelenskyy, and basically saying, I am predicating giving you aid on you helping me gin up a scandal against Joe Biden's son.

He wasn't ginning it up. We know he wasn't ginning it up.

You mean that Biden had actually done these things.

He had done something, yeah. And his son. It wasn't like there was no there there.

No, that is correct. To say you don't get aid unless you help us bring all of this to light, that's not presidential. To try to avoid that person coming back into office, slightly desperate moves, I cannot say that I did not sanction that. Lawfare, yes, it is. And yes, Democrats will keep doing that. And when it comes to that particular man, I would like them to.

There's not gonna be another election with that particular man. But Democrats will likely keep doing it. And as I said, when you said what you just said, your argument is not with that man. Your argument is with the people who might or might not vote for him. And if you can't win that argument, you don't have a chance of winning anything.

You go after that man if you want to, but if you don't attend to the reason that the people voted for him and not you, you're going to be toast for a long time. The Democrats are losing their grip on the working classes and lower-middle classes of the country. They're losing their grip on the immigrant population. They're losing their lock on the black population. There clearly is a problem in Democratic political land. And as long as you've got Trump as the avatar of your your reaction is against him and you're not attending to what it is you're not doing that people want you to do, you're going to lose.

Yes. But for me, the prime factor, the thing that I ranked above everything else, is whatever's going to happen to the Republican Party versus the Democratic Party, whoever working class people, especially of color, are going to vote for, it would have been better if that man had not been part of the equation. That's all.

Maybe there would be the same problem if it had been Vance or if it had been DeSantis up there. Yeah. But trying to make sure it isn't Trump? That was patriotic, as far as I'm concerned. But here we are.

And now we patriots—and I include you in that “we”—for the sake of our country, have to hope that he succeeds.

That is true. We have to deal with what we have.

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