Here's How Lawfare Is Shaking Out

I suddenly realized Alan Dershowitz has had very little to say about developments in Trump's trials in recent weeks beyond comparing his strategy in New York to the successful Chicago Seven strategy of 1969. But here's how he saw the prospects, at least for his four criminal indictments, as of last August:

Alan Dershowitz believes all of former president Donald Trump’s trials will be completed prior to the 2024 election, but notes “There’ll be some convictions,” along the way.

. . . “I predict there’ll be some convictions,” speculated the lawyer. “I think the strategy is to get bad convictions, but to get them fast,” he continued, saying that Trump would then be able to appeal the decisions, after the election. Dershowitz argued that this is the reason prosecutors are “rushing” to get their cases against Trump to trial.

. . . “They’re going to get on the bandwagon,” Dershowitz said of prosecutors. The “approach is to get him before the election, convict him before the election, and he wins on appeal.”

“That’s tomorrow’s news,” Dershowitz concluded.

By this past December, he had scaled back his estimate:

They're going to try their best. It's going to be up to the discretion of judges. I suspect there will be at least one trial and probably one conviction before the election. And I think there's a substantial chance that any convictions will be very, very carefully scrutinized by the appellate courts and ultimately by the Supreme Court. . . . I think definitely it will be appealed after the election. And I think there's a substantial chance it could be reversed based on venue, based on immunity, based on a lack of a reasonable basis for a search of a phone. There are many, many grounds on appeal, but it will have no effect on the election if it occurs after the election rather than before. [ellipsis in original]

But this was before Trump's appeal of Judge Chutkan's denial of his immunity claim put the January 6 case on hold and before the ethical issues in Atlanta put the timing of that prosecution in question. No date had been set for the Atlanta trial before the allegations against District Attorney Willis surfaced, while any likelihood that the January 6 trial will start as scheduled on March 4 is fading as the DC appeals court continues to review the case. No date has been set for any of his other trials, and they now seem unlikely even to begin, much less to conclude, before the election. Judge Chutkan has been forced to reiterate that the January 6 prosecution cannot proceed with any trial business while the appeal is under review, and Trump is likely to appeal any adverse ruling from the appeals court to the US Supreme Court, further placing a trial date out of reach.

It's very hard to find a single cogent summary of the Democrat lawfare strategy as it was developed in 2023, but Dershowitz's version is correct as far as it goes. This version in the Washington Examiner from just a month ago is more general, but it does mention an objective of preemptively driving Trump out of the race:

The story of the 2024 campaign so far is the effort by Democrats and their appointees to use criminal charges and lawsuits to force former President Donald Trump out of the race for a second term in the White House. The name for such an effort is lawfare — that is, “the strategic use of legal proceedings to intimidate or hinder an opponent,” to cite one law dictionary.

. . . [T]he reality is, the prosecutions and lawsuits are all the work of Trump’s political opponents. If they succeed, they will result in him going to prison, paying huge fines, and losing his business. They would, in short, once and for all remove Trump from the American political scene.

It is as if anti-Trump leaders concluded that elections did not succeed in getting rid of him and media attacks did not succeed in getting rid of him and investigations did not succeed in getting rid of him and now the next step is lawfare. That’s where we are now.

. . . Immediately after the first indictment, Bragg’s, support for Trump in the Republican primary race shot upward. It rose further amid later indictments and lawsuits, going from 44% support before the Bragg indictment to 63% support today in the RealClearPolitics average of polls. Some Republicans are clearly using support of Trump as a way to express their disapproval of the wave of prosecutions and lawsuits. Whether that will last is unclear. But the Democratic lawfare campaign has been relentless, and it will surely provoke continuing Republican reaction in the months to come.

This discussion doesn't raise the issue of timing even as much as Dershowitz does, but as the cases have proceeded, it's become highly unlikely that any of the trials can conclude before the election. But the assumption had also been that the trials likely to begin the soonest, the January 6 trial scheduled to start March 4, and the Atlanta trial, still with an indefinite start date, would at least feature headline allegations in testimony against Trump atarting just before the March 5 Super Tuesday primary and extend through the rest of the primary season.

But as of now, with Gov DiSantis dropping out of the Republican race before tomorrow's New Hampshire primary and polls suggesting Trump will beat Ambassador Haley with 50% or more, the Republican primary season is effectively over, with a large segment of voters discounting Trump's indictments and farcical civil trials, with the credibility of the Atlanta prosecution collapsing. As the credibility of these trials diminishes, it will affect the public view of any future prosecutions, especially any that might yet be brought before the election.

So far, the Democrat lawfare strategy has, if anything, worked not just to keep Trump in the race but to enhance his general-election prospects in a way that's overtaken even Alan Dershowitz's predictions.