“God has a special providence for fools, drunkards, and the United States of America,” Otto Von Bismarck reportedly observed, but those of us who want to believe that the rule of law still holds our nation together have not had much cause for that belief in recent weeks. Most unnerving is what is now referred to as the “lawfare” waged against former President Donald Trump by what appears to be a coordinated effort (directed, quite probably, by aides to or allies of President Joe Biden, if not by the chief executive himself). 

We can define lawfare as the dubious twisting of statutes or precedents to use them in ways they were never designed to be employed for the purpose of damaging a political foe. This tried-and-true tactic often was used by Joseph Stalin and his minions in the former Soviet Union and is the preferred practice of South and Central American dictatorships (“Banana Republics”). Until recently, it was thought that the inherent conservatism, or, perhaps, the ingrained wisdom of our English Common Law tradition restrained such misuse of criminal law in America, although recent scholarship has begun to reveal, for example, that during the much-vaunted New Deal, lawfare was often waged against FDR’s critics, quite possibly at the instigation of FDR himself.

There are currently four lawfare battles against Donald Trump, and happily, we appear to be witnessing the unravelling of each of them. On May 8, a Georgia appeals court agreed to consider whether Fulton County District Attorney Fani Willis, who had been prosecuting Trump for election fraud under the state RICO (Racketeer-Influenced and Corrupt Organizations) Act, should be removed from the case. Willis, who sought to apply the RICO statute to elections—an area in which the law had very little application and had never been used—was further compromised because of “the appearance of impropriety” in her conduct of the case due to her apparent dissembling and possible misconduct with a purported paramour whom she hired to work with her on the case. 

The aim in all these lawfare cases appears to be to convict Trump of some crime before the election, but it now appears unlikely that the appeals court decision will be rendered in time for any Georgia conviction of Trump to occur.

There are two federal lawfare proceedings against Trump brought by Special Counsel Jack Smith. One of those, involving Trump’s activities on Jan. 6, 2021, has been put on hold pending a United States Supreme Court ruling on whether Trump’s actions on that date were covered by presidential immunity, which purportedly shields official actions from later criminal prosecutions. 

The Supreme Court could, conceivably, throw out that prosecution. It is more likely that in late June or early July, it will rule that there is such immunity, but there must be further proceedings by the lower federal courts to determine with more precision whether the allegations against Trump fall within the protected zone of official acts. It is unlikely that such a determination (and a subsequent trial) could take place before the November election.

The second federal prosecution for the purported violations of federal law regarding classified documents was put on hold by the trial court judge on May 7 because of an admission by Special Counsel Smith that his office had tampered with those documents. Resolving that problem is also likely to take months, and there is even a chance that the Supreme Court will rule that Smith’s appointment is unconstitutional. This was argued in an amicus brief by former Attorney General Edwin Meese and prominent Federalist Society law professors Steven Calabresi and Gary Lawson. At the oral argument in the case, at least one Justice, Clarence Thomas, appeared sympathetic to such a ruling.

The fourth lawfare engagement currently underway is the New York state felony prosecution, based on an extremely convoluted argument that Trump engaged in bookkeeping violations that were designed to interfere with the 2016 election, inter alia, by treating “hush money” payments to porn star “Stormy Daniels” as “legal expenses” rather than “campaign contributions.” This resulted in a conviction at the end of May, despite a lack of evidence to support the charge and despite the severe credibility problems of two of the chief witnesses for the prosecution, Daniels, and Trump’s former lawyer Michael Cohen. 

Daniels has changed her story about a purported tryst with the former president several times (she has an outstanding judgment against her for $500,000 owed to Trump), and Cohen has actually been found to have committed perjury. The judge in the case, Juan Merchan, has made several legally questionable rulings, and the consensus of the commentators is that even if there were a conviction (the trial is likely to conclude within the next few weeks), it would likely be overturned on appeal, either because the legal theory is faulty, or because prejudicial evidence (such as Daniels’ testimony) has been admitted.

That reversal on appeal would likely not happen before November, however, and the prosecution in that New York case (featuring a lawyer, Matthew Colangelo, a former Justice Department official who appears to have been dispatched to work on the case by persons connected to high-placed Democrats, if not the White House itself) might succeed in getting a New York jury to convict Trump. The prosecution is, presumably, banking on the fact that the jury pool in New York (a blue city that voted overwhelmingly against Trump in 2020) is unlikely to be sympathetic to his protestations of innocence.

I’m not so sure. The New York case has been the subject of intense media scrutiny. The jury includes some with legal training, and it would not surprise me if even that New York jury could be made to understand that not just Trump but the rule of law itself is on trial in these lawfare proceedings. A hung jury or an acquittal remains a possibility. It is even plausible (though perhaps unlikely) that Judge Merchan will properly rule, at the close of the presentation of the prosecution’s case, that there is not enough criminal evidence to go to the jury, and a directed verdict of not guilty will be ordered. 

If Providence is still ordering the affairs of this nation, a defeat for lawfare and a win for Trump in November could occur.