Patterico's Pontifications


Constitutional Vanguard: No, the Cases Against Trump Are Not “Lawfare”

Filed under: General — Patterico @ 7:58 am

In my latest newsletter, which is over 10,000 words long, I once again pick on Sarah Isgur. Today I am taking issue with her contention that “Republican voters’ concerns about ‘lawfare’ aren’t entirely unfounded.” Specifically, I note various ways in which her presentation of the question omits important arguments that tend to dispel the notion that the cases against Trump are “lawfare.”

Yes, it’s long, but don’t fret. There’s a summary up front that’s no more than 1,700 words, which isn’t too bad. There are even bullet points, which are barely over 1,000 words. You can just read the bullet points and get the gist.

I’ve made the first 4,700 words or so available for all, and the remaining bit, over 5,000 words, accessible to the paid elite. But anyone can read the bullet-point summary up top and easily comprehend the nub of all my arguments.

Excerpt from the free portion:

Isgur suggests that even the classified documents case might be lawfare, because there is a precedent discussed in the recent report by Robert Hur (the special counsel in charge of the Biden documents case) in which Ronald Reagan was allowed to retain his own handwritten notes, which contained highly classified material, even after his presidency had ended. Isgur says Trump supporters are “left to wonder” why Trump is being treated differently, darkly suggesting that the reason is because Trump is running against Joe Biden.

What Isgur knows, but does not tell her readers, is that the Hur report clearly lays out why DOJ thinks Trump is different from Biden or even Reagan. Specifically, Hur says in his executive summary, which Isgur says she has read, that “after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it.” That was not true of Biden or Reagan. Hur explains that such aggravating facts present a circumstance why DOJ is compelled to bring a prosecution that it might not otherwise have brought. Isgur should have explained this to her readers.

Excerpt from the paid portion, addressing the significance of reported comments that Biden is impatient with the pace of the Trump prosecutions:

In fact, the Department of Justice has a long and proud history of independence from the politics of the White House. This independence is not beyond theoretical question regarding how total it may be (see: the so-called “unitary executive” theory) and the history is not entirely without blemish (see: the way that presidents like Nixon and Trump have threatened DOJ’s independence, to cite two examples among many). But generally speaking, DOJ has done an admirable job of keeping politics out of its prosecutions. The Department has rules about not interfering with elections, and about walling off the White House from decision making in politically sensitive cases. The Department is very good about this, in my judgment.

And nobody should know this history of independence better than Sarah Isgur, who was once the top spokesperson for the Department of Justice under Donald Trump. Not only should she know about this history of independence, she does know it—very well. I know this for a fact, because I have heard her talk about it many times—like, for example, when she explained why DOJ would never have consulted or even informed Biden before executing a search warrant on Donald Trump’s Mar-a-Lago residence.

Yet the concept of DOJ’s independence, which one would think is particularly relevant to a discussion of whether Joe Biden is calling the shots in the Trump prosecutions, is oddly absent from Isgur’s entire piece. Indeed, in a paragraph whose topic sentence claims that GOP voters have some basis to be concerned about lawfare against Trump, Isgur cites Joe Biden’s dumb statements, without making even the slightest reference to DOJ’s history of independence, or to the overwhelming evidence in the Politico article she cites showing that DOJ has been acting independently under Biden in various politically charged decisions and prosecutions.

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