Lawfare, the Constitution, and the Fight for Our Democracy
The deepening divide between America’s two major political parties has many layers—but one that deserves more attention is the clash between lawfare and Constitutional law.
Lawfare—a term you may not have heard much until recently—means using legal processes as a weapon to intimidate or hinder an opponent. In theory, our legal system is built on something much nobler: the U.S. Constitution and the principle of the rule of law. That means no one—not presidents, not Congress, not the courts—is above the law. The Constitution lays out a government of laws, not of individuals, where power is limited and accountable.
The term lawfare itself isn’t brand new. It was first publicly reported in 1957 in a divorce case. But the practice of using legal tools for political advantage? That’s as old as the republic. States, politicians, and even international actors have always tried to bend legal frameworks to achieve their goals. Sometimes that’s been a humane alternative to military action. But more often lately, the term is used to describe something far more cynical: twisting the law to damage an opponent, rather than uphold justice.
Over the past few decades, both parties have played this game. In the wake of Watergate, Congress created the Ethics in Government Act (1978), setting rules for appointing a special prosecutor. That law eventually expired, leaving the Attorney General as the sole authority to appoint one. Since 1974, at least 29 special prosecutors have been tasked with investigating U.S. presidents or their administrations—each appointment steeped in politics as much as justice.
And in the last 10 years, the temperature has only risen. Lawfare-like tactics are now a go-to political weapon, often less about the truth and more about the headlines. The results aren’t always what the initiators expect. The Wall Street Journal summed it up bluntly in its take on the 2024 race: Democrats believed four indictments would sink Donald Trump, yet the courtroom strategy may have been one of the biggest political miscalculations in history.
Now, in the wake of the 2024 election, much of Donald Trump’s presidential term is focused on reshaping the Department of Justice—aiming to protect himself from future prosecution. That, in turn, sets up the next chapter of escalation. And here’s the danger: when one political faction gains outsized control over the judiciary, the balance of power—so essential to our system—starts to crumble. As Harvard’s Andrew O'Donahue warns, when courts become partisan weapons, political actors stop persuading voters and start appealing to “friendly” judges. Public trust erodes. Democracy weakens.
When it comes to the practice of lawfare, the leaders in both political parties are likely to point fingers at their opponents. And they may argue that they are simply enforcing the current provisions of the law. And this may be the case. Yet the evidence that the practice is escalating and having divisive consequences is unmistakeable. Both Democratic and Republican leaders have earned a red flag for their disregard of this divisive slippery slope. And president Trump has earned a red flag due to his numerous pronouncements casting doubt about the integrity of the legal system.
So, what happens if this cycle keeps spinning? Will we keep chipping away at our democratic republic until it’s unrecognizable? Could we slide toward political violence? Or is there a chance that current and future leaders will step up and restore balance?
No one can predict every twist in history. (Remember how COVID-19 upended everything overnight?) But one thing is certain—doing nothing is the most dangerous option of all. The problems we face are complex and real, and they will not solve themselves.
That means the responsibility is ours—yours and mine. We can work to rebuild civility in our own communities. We can back leaders who actually practice ethical leadership, not just preach it. And we can use our voices and votes to push back against the spiral of destruction.
Hope matters. But hope without action is just wishful thinking.
