Interview: Josh Hammer On Solving The Lawfare Crisis

Josh Hammer is a syndicated columnist, a lawyer, a senior editor-at-large at Newsweek, the syndicated host of “The Josh Hammer Show,” and the host of “America on Trial with Josh Hammer.”

You launched a new show focusing on lawfare. Why should Americans pay attention to this topic?

I launched my second show, “America on Trial with Josh Hammer,” in late January on top of my pre-existing show, “The Josh Hammer Show.” We’re trying to get you all the legal information that you need every day. We are focusing now on the 2024 presidential election and, above all else, on the persecution of Donald Trump.

I don’t have any particularly strong feelings about Donald Trump. I was a vocal — at times vociferous — supporter of Ron DeSantis in the Republican presidential primary; I live in Florida. So, I’m impartial about Donald Trump, although I hope he wins the presidential general election this fall.

That said, I don’t think it matters what your politics are, what your partisan identity is, or who you idiosyncratically like or dislike. What is currently happening with lawfare is that this is the first time there has been a presidential election in which a major party’s candidate is being criminally prosecuted.

It’s happened to Trump four separate times across four different jurisdictions by three different prosecutors, totaling 91 criminal accounts. On top of that, the Attorney General of New York, Letitia James, is pursuing an outrageous civil action on behalf of financial institutions that were not actually harmed: she’s swooping in as a third-party intervenor because she thinks certain properties were not valued properly, and she’s trying to get almost half a billion dollars from the Trump Organization. They’re trying to bankrupt this man, criminalize him, send him to jail any way possible, and it is just un-American. It reeks of the old Stalinist mantra, “Show me the man, and I will show you the crime.” That’s why I care.

I clerked for a federal judge on the U.S. Court of Appeals for the Fifth Circuit, I carry my Constitution right here on my desk, and I care a lot about the rule of law in this country. Seeing what’s currently happening is profoundly distressing. Every day that this continues, we inch ever closer to the abyss of becoming another third-world banana republic.

People say the term ‘unprecedented’ is often misused. Is there any prior history of what’s happening now?

No, 100 percent absolutely not. In a 1982 case called Nixon v. Fitzgerald, the U.S. Supreme Court said a former president could not be liable for civil action after his term in office. Then, in the 1990s, Bill Clinton was facing possible perjury charges in the Monica Lewinsky ordeal. Clinton essentially took a deal whereby he would forfeit bar memberhip; he surrendered his bar license as a condition of not facing criminal indictment. So, no, we have never criminally prosecuted a major party presidential candidate or a former president of the United States. I cannot underscore that very basic, rudimentary point enough.

And I don't want to overstate. It's probably true that, at some point, someone ran for president but not on a major party ticket; I’d have to do a deep dive. Possibly, someone was prosecuted for something — but that's not the point. This is a major party candidate, a former president of the United States itself. So, the answer to your question is very simple: there's no precedent for this.

How does this compare to corruption in third-world or European countries?

That was the first thought many of us had in August 2022 when the FBI conducted the pre-dawn raid at Mar-a-Lago, which led to the classified documents indictment for one of Special Counsel Jack Smith’s two federal probes. Trump faced that first, and then the Washington, D.C.probe currently pending before SCOTUS on the immunity question. Are we rapidly becoming a country that will criminalize and imprison its political opposition? I mean, that is quite literally what is happening.

The attorney general of the United States, Merrick Garland, and his appointed special counsel, Jack Smith, are foot soldiers — ultimately accountable to the president of the United States, Joe Biden. Joe Biden is currently trying to throw his leading political opponent in jail. There is no other way to look at it.

Some people might argue that Special Counsel Jack Smith is technically independent of the DOJ. No, he's not. A distinction was made between the modern special counsel and the old-school independent counsel in a famous Supreme Court case from the late 1980s called Morrison v. Olson.

Justice Scalia wrote a solo dissent that ended up being vindicated; virtually everyone agrees with it today. Scalia said the old-school independent counsel that purported to function outside of the DOJ hierarchy and chain of command is unconstitutional because it violates the executive power of Article II: the executive has to control the whole branch. You can't have someone outside of the chain of command. That's unconstitutional.

So, the Special Counsel is ultimately accountable to Merrick Garland and Joe Biden. As I just said, Joe Biden is trying to jail his political opposition. I don't care what your politics or partisan identity is; that should raise the hackles on the back of the neck of any good red-blooded American patriot.

America used to take pride in its justice system. What happened?

There are a lot of ways to answer that question. The rise of progressive jurisprudence more generally dates back to the New Deal — the so-called ‘switch in time that saved nine’ — which is when FDR was threatening to pack the United States Supreme Court in the mid to late 1930s.

Some justices were anti-New Deal on Commerce Clause grounds: FDR’s New Deal was unconstitutional. They essentially switched to being robust supporters of the New Deal. And a famous footnote — Footnote Four, from a case called Carolene Products— speaks of so-called “discrete and insular minorities.” It was a precursor to modern intersectional identity politics.

Progressive jurisprudence winds its way during the mid-20th century throughout the Warren Court and, to an extent, the Burger Court. And that precipitated the rise of the modern conservative legal movement and originalism, which I speak and write about greatly in other fora.

The point is that we've had somewhat of a crisis regarding the integrity of left-leaning approaches to the judicial function for almost a century now, going at least as far back as FDR’s threat to pack the United States Supreme Court. I wrote a syndicated column on this topic three years ago, when Joe Biden and the Democrats were threatening to pack the Supreme Court.

In 1937, the United States Senate Judiciary Committee, which at the time was dominated by Democrats — FDR’s own party, released an unbelievable statement. I believe 1937 was when FDR was trying to pack the court. They issued a scathing, withering criticism of FDR, saying (paraphrasing), ‘We shall forever go down in history as those who defended the court's independence. You shall not dictate to the Supreme Court.’ It's remarkable how far the left has turned from that stance to what we're seeing today.

But regarding modern lawfare, I think it's primarily a post-Trump phenomenon. This is when the Russia-collusion delusion metastasized and got its own legs. That brings us to the Mueller probe, the first sham impeachment involving Volodomyr Zelensky, on a very brief, uninteresting, five-page phone call which was one of the weakest grounds I've ever seen for an impeachment inquiry.

Now, the Obama administration obviously had its problems: Eric Holder was a very far-left attorney general, and Jeh Johnson was a horrific DHS Secretary when it came to the Southern border. But this modern idea of lawfare, of using the law to try to imprison your political enemies — which, again, is pretty Stalinist — is largely a post-2016, post-Trump phenomenon.

How does this lawfare saga affect Americans?

Good question. There are a lot of possible downstream effects. The first effect that comes to mind is living in this current Zeitgeist climate whereby we are using the levers of law enforcement and prosecution to try to imprison people because of who they are — not because of what they did. It's going to make tensions in this country flare even hotter.

We're probably the most divided we've been since the 1850s. You could argue that we're even more divided today. My friend Ryan Williams, the president of Claremont Institute, made the argument in a really interesting 2021 interview with The Atlantic magazine.

Back in the 1850s, we at least worshiped the same God. We happened to disagree over the question of slavery — the so-called ‘peculiar institution’ — but we ultimately looked up to the same God. Now, in the year 2024, we can't even agree on how many genders there are, so we certainly don't agree on what the Creator Himself, God Almighty, looks like. But I digress. The point is that in a time of division, trying to politicize something as ostensively nonpartisan or nonpolitical as the rule of law and the judicial system is playing with fire.

Once upon a time, you had candidates of all political stripes. Maybe they disagreed when it came to constitutional interpretation; that’s what I was getting at earlier — the progressive takeover of the U.S. Supreme Court beginning at the ‘switch in time that saved nine’ with FDR and then continuing through the Warren and Burger Court. My stance is not that these progressive liberal jurisprudes, judges, and lawyers were un-American hacks. My stance is they take a very different view of constitutional interpretation, such as a more expansive view of the Commerce Clause.

That view is different from today's modern left—the same left that is using the lawfare apparatus against its political opposition, the same left that is increasingly reluctant to fly the American flag. Perhaps they are more likely to burn the American flag which, according to a mistaken1980s Supreme Court case called Texas v. Johnson, is their purported constitutional right. I think that decision is mistaken, but I digress yet again.

We should care, because this will further inflame tensions. It will make us more and more divided and take us further toward the brink of something I don't particularly want to contemplate — what some conservative commentators refer to as an amicable divorce, mutually agreeable divorce, or national divorce. It’s not something I advocate for or want, to put it mildly. It will create even greater animosity.

Ultimately, that animosity will trickle down, not just at the political level but also into communities. If you are a supporter of Donald Trump, and your neighbor, who you generally get along with — you tip your cap when you're mowing the lawn and say, “Hi, John, how are you?” — happens to be a Biden supporter, you might not see him the same way. If his social media posts are enthusiastic about Jack Smith trying to throw Trump in jail, you probably won’t greet him anymore.

These factors are working together; lawfare and social media with the incentive structure are creating more tension. If America needs anything, it is to become less tense: Go touch some grass and get offline more. Unfortunately, the current fever pitch of our politics and lawfare makes that difficult.

What is the solution? How can those on the sidelines make a difference?

Personally, people can use their power of persuasion as they wish. Not everyone has a giant megaphone or a platform but, at a bare minimum, feel free to have conversations with your family, friends, and church or synagogue members. I find that those conversations are typically more effective than posting a rant on social media. But, if that's how you choose to engage at a local level, by all means, go for it.

You can also run for local office or try to make a difference on your local school board. Most politics are local and, ultimately, that is how to make inroads: the local level, the county level, and building up to the state level. Lay the groundwork before trying to retake Washington. In general, the Catholic principle of subsidiarity is the notion of focusing on the most local. I'm Jewish, but  there’s wisdom in that.

To answer the more aggressive part of your question, what can be done at the national level to swing the pendulum back toward sanity, I have been a fairly vocal proponent of escalating things in the short term to make them more sustainable in the mid-to-long term. You have to punch back, and you have to fight fire with fire: an eye for an eye — as unpleasant or perhaps as counterintuitive to some conservatives as it may seem — to try to get us to a place where we have a modicum of mid- to long-term stability.

A concrete example of what that looks like: since they're prosecuting Donald Trump on these ridiculous charges, why doesn't an enterprising, ambitious Republican local prosecutor — let's say in West Texas or some very red jurisdiction — indict Anthony Fauci for a state crime against people in his jurisdiction? Drag him in front of an unsympathetic jury in West Texas and see how that goes for Anthony Fauci.

You've got to fight fire with fire; you've got to do to them what they are doing to us — wield power to reward friends and punish enemies within the confines of the rule of law. Again, that's going to make people unpleasant, but I submit to you that the way to deal with a bully is not to slink back. You have to punch back.

Typically, when conservatives say what I'm saying, they’re accused of being authoritarian or fascist. And when the left does the exact same thing, they are lauded by the usual suspects for defending our democracy. It's pretty funny how that works, isn't it?

The question we always ask last: what are you optimistic about?

I'll take that question in two directions…

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