Debunking the myth of ‘lawfare’

Justice is not arithmetic, but numbers can clarify judicial results. Consider the recent criminal trials of Donald Trump and Hunter Biden: two juries, two unanimous verdicts, zero “lawfare.”

Trump has long contended that he could not get a fair trial in New York. The premise of his assertion was that, because he had lost New York in both the 2016 and 2020 presidential elections, any jury would be prejudiced against him — and that jurors’ political views would override their duty to reach a fair judgement in his favor.

Citizen Trump was claiming both selective prosecution and a hostile venue. To him and his followers, this was “lawfare” in action — abuse of the legal system to attack a political opponent.

Set aside the contention that politics necessarily corrupts jury deliberations. Note that the jury seated for the New York case was selected with the active participation of both Trump’s attorneys and the prosecutors.

More fundamentally, the claim falls apart under scrutiny. In losing New York in 2020, Trump still received almost 700,000 votes (about 23 percent of the total) in Manhattan, the trial site. It is highly likely that a jury drawn randomly from a pool of registered voters, driver licensees and taxpayers would include some Trump supporters — perhaps two or three in the group of 12 jurors, and four in the total of 18 selected as jurors and alternates.

Recall that the requirement of unanimity means that a sole dissenting juror would have prevented Trump’s conviction. There were reports that Trump himself thought that he had at least one supporter in the jury — in discussions with his team, he was said to have spoken of “my juror.”

The odds suggest that defendant Trump likely had more than one political supporter in the jury. But when rendering their verdict, no juror concluded that he was innocent of any of the 34 counts brought against him. The jurors' unanimous judgment testifies both to their individual integrity and to the hollowness of Trump’s protest that lawfare controlled the process.

Those who proclaim that the charges should never have been brought need to ask themselves why, if the Manhattan case was so basically flawed, the jury concluded that the evidence validated the charges. This was not an instance in which the famous quip that a prosecutor could indict a ham sandwich applied. A grand jury may be amenable to a persuasive prosecutor, but no grand jury sends a defendant to prison or other punishment.

In Trump’s New York business records case, the system’s safeguards were in place. The trial jury was obligated to weigh the arguments of both the prosecution and the defense, informed by far more evidence than the grand jury considered and by the cross-examination of witnesses chosen by both sides’ lawyers.

The implication that so-called “lawfare” prevailed does not withstand scrutiny.

A second case merits comparison. The fairness of America’s justice system was further vindicated by the Delaware jury that found Hunter Biden guilty of several gun charges. If ever there was an occasion to expect a political thumb on the scale, this was it. Delaware was home ground for the Biden family and had voted overwhelmingly for Biden in many campaigns.

If the jury was acting on political grounds, surely acquittal was in store for the younger Biden. Yet the jurors were unanimous for conviction.

Here we found the president, possessing the ample power that allowed Gerald Ford to pardon Richard Nixon, declining to intervene when the Justice Department assigned the case to a Trump-appointed prosecutor, giving him free rein to pursue the prosecution.

After the jury voted to convict, Biden made clear that he would not pardon his son or commute the sentence when it is handed down. Compare that to Trump’s repeated applause for those convicted of the Jan. 6, 2021 violence and his pledge, if reelected, to pardon those of his supporters he now calls his “warriors.”

And the contention by some in the Trump camp that the Hunter Biden case was somehow designed to lend credibility to the New York prosecution is beyond ludicrous. Sacrifice a son to gain advantage over a political opponent? Donald Trump might do that, but not Joe Biden.

Reactions to these similar but contrasting proceedings illustrate the depth of our political malaise. “Truth decay,” as RAND Corporation scholars have termed much of our current public discourse, is lethal to honest government. The contention by Trump and his allies that juries are too political to be trusted to function in accord with law is effectively a demand that their own political preferences should prevail.

Many smart politicians dishonor themselves by seeking the favor of a dishonorable leader. If the constitutional order is to maintain its equilibrium, citizens at large must reach reasoned, fact-based judgements. A key step toward that goal is to recognize “lawfare” as a myth crafted to advance one politician’s ambitions. It is a fallacy that besmirches the American system of justice.

Alton Frye has led many bipartisan initiatives and written extensively on policy and constitutional issues.