JONATHAN TURLEY: The public rejected lawfare when they re-elected Trump
The reaction to the reelection of Donald Trump in the media has ranged from histrionic to outright hysteria. MSNBC analyst and former Sen. Claire McCaskill wept openly on television as CBS News anchor John Dickerson got choked up on national television in an interview on "The Late Show with Stephen Colbert," struggling to discuss the news days after the election.
However, arguably the most perplexing response came a few days ago when the New York Times ran a column from one of the advocates of the lawfare used against Trump since 2016.
Yale Law Professor Samuel Moyn has long been a favorite of the New York Times as part of what I have previously described as a counter-constitutional movement in higher education. As I discuss in my book, "The Indispensable Right," Moyn and others have insisted that the constitution itself may be the problem with America.
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In a prior New York Times op-ed, "The Constitution Is Broken and Should Not Be Reclaimed," Moyn and Professor Ryan D. Doerfler of Harvard called for liberals to "reclaim America from constitutionalism."
While the New York Times publicly condemned a U.S. senator for writing about the use of the National Guard to stop violent protests (as would be done at both the White House and the Capitol), it has published a long line of figures who have engaged in violent or extremist rhetoric from the left.
However, this particular column may not be worth the ink and hypocrisy needed to publish it. The New York Times long lionized those who brought raw partisan prosecutions against Trump and his allies, including efforts to cleanse ballots to deny citizens the opportunity to vote for the man who just won the popular vote.
Moyn's column "Liberals Bet They Could Beat Trump With the Law," regrets the lawfare, not because it distorted the law and weaponized the legal system, but because it did not work.
He even quotes Benjamin Wittes, who helped create the lawfare website, which was used, in Moyn's words, "to hem in Mr. Trump." Wittes wrote, "I have no interest in recriminations." Perhaps, but the public does.
The election – which handed both houses of Congress and the White House to the GOP – was arguably the largest verdict in history. However, it was not necessarily a verdict for Trump as much as it was against the lawfare and advocacy journalism that had been used openly for years.
After all, the "Let’s Go Brandon!" movement, developed at the start of the Biden administration, was as much a criticism of the media and political establishment as it was Joe Biden – a type of "Yankee Doodling" of the political and media establishment.
For years, these figures ignored the "recriminations" of some who objected to using the legal system for political purposes, particularly in the New York cases.
To his credit, Moyn now admits that "the more uncomfortable truth is that our search for political salvation primarily through the law has backfired."
However, he remains remarkably uncritical of such tactics in the first place. Instead, he insists that these losses were due to simply "legalistic tactics." Some of us call that the law.
Moyn plays Shakespeare's "Othello" in claiming to be "one that lov'd not wisely but too well." The problem, he explains to the fragile Times readership is that they "rooted their opposition to Mr. Trump in the law since his first month in office." He even refers to efforts early on to block Trump's immigration policies.
As soon as Trump came into office, he faced an acting Attorney General, Sally Yates, who ordered the department to stand down and not assist the new president in his immigration orders. I wrote at the time that the order was an outrageous and partisan act by Yates, who was planning on leaving in a matter of days.
While I criticized the initial Trump orders as poorly crafted (perhaps due to the lack of legal support) and in need of revision, I noted that he was likely to prevail on his claimed underlying authority. He did ultimately prevail after revising the orders. Yet, the New York Times and other publications again lionized Yates for an act that some of us view as unprofessional and arguably unethical.
The problem with the lawfare campaign is that it did not just treat the law as an extension of politics, but treated the public as chumps. A large part of the public saw these cases for what they were: the use of motivated judges in favorable jurisdictions for political advantage.
These same figures claim to be "saving democracy."
The result was that liberals convinced many citizens that democracy was at risk… from them. What they saw was efforts at ballot cleansing to remove Trump and other Republicans from the ballots. They saw raw lawfare in New York courts. They saw Kamala Harris and other Democrats supporting an unprecedented system of censorship that one court called "Orwellian."
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Liberals continued to ignore that obvious disconnection despite the polls showing that they were increasingly viewed as the threat. Voters in swing states felt that Trump was more likely to protect democracy than Kamala Harris, who was running on a "save democracy" platform. One poll asked whether Trump or Harris "would do a better job" of "defending against threats to democracy," 43 percent picked Trump while 40 percent picked Harris. Likewise, free speech registered as one of the greatest concerns for voters in this election after years of censorship and blacklisting from the left.
Now, one of the academics who previously said that we have to reimagine our democracy and trash our constitution is advising that the election left "a Democratic Party in dire need of reimagining."
There is a point where "reimagining" everything from the police to democracy becomes less of an exercise of self-evaluation than self-delusion. What many figures like Moyn are not willing to admit is that what Democrats attempted to do with lawfare was wrong and that the public rejected it ... and them.