Journal of Right-Wing Studies

For my friends, justice and pardons; for my enemies, the law.

                                                            —Benito Juárez

Anyone interested in analyzing how the right seeks to take power in the US should learn about “lawfare,”^[1] because that is how the right has learned to take power in Latin America—by using the courts to break lawfully elected progressive governments. When corruption charges become a smokescreen for getting rid of duly elected politicians what we get is the corruption of democratic politics and the corruption of anticorruption efforts—it is doubly perverse.

Simply put, lawfare is war by other means that achieves conquest using laws and judges instead of bombs and bullets. Charles Dunlap, a retired US Air Force major general now teaching at Duke Law School, is generally credited with introducing lawfare into the lexicon of the military establishment. Given court maneuvers by Donald Trump and his supporters contesting Joe Biden’s 2020 electoral win, it is reasonable to ask: are we seeing lawfare at work in the US?

The hearings of the House of Representatives Select Committee on the January 6th Attack suggested the answer is yes, as they uncovered ample evidence of willingness to overturn the election through highly dubious readings of the Constitution. One could also reference recent decisions by the Supreme Court of the United States (SCOTUS) on abortion rights, gun control, and school prayer, fashioned by a conservative majority built on Trump’s three SCOTUS appointments. As lawfare in action, one could further point to Republican-led legal initiatives in many states to rewrite voting laws in ways that discriminate against minority voters and remove control of elections from nonpartisan mechanisms in order to put outcomes in the hands of elected officials.

Of course, one could choose to take these as nothing more than evidence of the push and pull of American democracy at work, even considering the deadly assault on the US Capitol on January 6, 2021. Yet anyone interested in the future of democracy needs to pay attention not only to the political passions at work but also to the processes behind them. We need only look to Latin America, where, in the name of fighting corruption, US foreign policy has been financing and promoting lawfare for decades. US law (the Foreign Corrupt Practices Act in particular) and various US agency programs to fight corruption abroad have been misused in Latin America to effect regime change. Under the pretext of enforcing the law, democratically elected left-of-center governments are replaced by right-wing rulers who better serve US geopolitical, business, and financial interests rather than more independent policies or the interests of citizens and voters.

Is Lawfare as Foreign Policy Circling Back to the Homeland?

Lawfare takes over government or impedes its orderly functioning by seeking to cancel the policies of democratically elected leaders through the actions of a partisan right-wing judiciary. It is called lawfare instead of warfare because it involves the takeover of government without military invasion or coup. A misuse of law, it effectively usurps democracy under the pretense of enforcing the rule of law and fighting executive overreach, misdeeds, or corruption. Where it is successful, lawfare achieves a judicial coup d’état. At its heart is the well-planned long-game takeover of the judicial system by seeding it with judges and prosecutors who are loyal to an extremist right-wing agenda, who ignore legal precedent, custom, and established law, and who invent new legal doctrine to justify their rulings.

Lawfare strategy was developed in the US, but it has been tested, applied, and perfected in Latin America. Found to work there, it seems to have been brought back for implementation in the homeland. Texas’s junior senator, Ted Cruz, is up to speed on the strategy, recently urging Secretary of State Anthony Blinken to sanction Argentina’s vice president, Cristina Fernandez de Kirchner, for corruption—with a series of wild and unproven allegations that have either already been litigated and shown to be baseless or are still in process. It is a short step from pushing lawfare in Latin America to putting it in practice in the US.

An article about the recent US Supreme Court rulings by ACLU Director David Cole (formerly a professor at Georgetown Law School) calls them “unprecedented.”

The Court eliminated the right to abortion, struck down a century-old New York law that limited the public carrying of guns, required the state of Maine to fund evangelical religious education and a Washington public school to allow its football coach to pray publicly at the fifty-yard line after games, blocked President Biden’s Covid vaccine mandate for large businesses, and denied the Environmental Protection Agency the authority to require power plants to shift away from coal in order to slow global warming. Compromise, consensus, and the rule of law are out; the radical exercise of power is in.

Unprecedented perhaps in the US, but not abroad.

The restriction of rights by SCOTUS and state courts—be it of women to have an abortion, or of citizens to vote by mail, or of everyone to pursue happiness in a healthy and livable environment—in effect dismantles the political framework of democracy, in which elections represent the will of the people, replacing it by regressive judicial rule. Its modus operandi is to interfere in legitimate electoral processes and block executive government functions or agencies when policies deviate from extreme right-wing ideology (for example, by canceling government actions to control climate change).

Lawfare as US Foreign Policy in Latin America

Many centrist and left-wing politicians in Latin America believe lawfare has been at work against them for decades. They point to US government funding for programs implemented by the Department of Justice. When one looks at US history in Latin America this point of view cannot be dismissed outright. Ever since the Monroe Doctrine was declared in 1823, US foreign policy in Latin America has explicitly put US economic interests first and eliminated any Latin American government that sought to put its own national interests first. The doctrine’s slogan was “America [understood as including Central and South America] for the Americans [understood as only the US].” Mostly this was done by sending in the Marines or paramilitary forces and/or setting up reliably pro-US regimes, as in Puerto Rico and Cuba (1898), Mexico (1914–1918), Haiti (1915–1934), Guatemala (1954), unsuccessfully by proxy in Cuba (1961, the Bay of Pigs), in the Dominican Republic (1965), Nicaragua (1981–1990), Grenada (1983), and Panama (1989). Or by backing military coups, as in Chile against Salvador Allende (1973). In the twenty-first century a new way has been found: lawfare instead of military action. Indeed, the State Department, the Justice Department, the FBI, the US Army, and the CIA have actively contributed in different ways to lawfare, often with surprisingly good coordination.

The Justice Department’s website describes its involvement with Latin American judiciaries.

Since 1991, with funding from the Department of State, OPDAT [Office of Overseas Prosecutorial Development, Assistance, and Training] has provided expert assistance and case-based mentoring to foreign counterparts to develop justice systems that can combat corruption. . . . [This includes] courses for judges, prosecutors, and investigators at the Department of State’s International Law Enforcement Academy (ILEA) facilities around the world. . . . OPDAT’s programs provide technical assistance, mentoring and training to judges, prosecutors, and law enforcement officers in combatting transnational crime and its connection to corruption. . . . OPDAT’s Judicial Studies Institute . . . recently held a four-part virtual series on managing public corruption cases for more than 190 judges from Argentina, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, and Peru.

These programs are officially said to be for training in fighting against corruption. But many of the participants are right-wing judges and prosecutors, who then use corruption indictments as a pretext to unseat democratically elected governments.

The US Army, acting through its Southern Command, is likewise active in what it calls “indirect action” as part of a “whole-of-government” effort to keep the Americas safe from nonhemispheric geopolitical influences. Dr. R. Evan Ellis, a research professor of Latin American Studies at the US Army War College Strategic Studies Institute, has detailed how the US Department of Defense works in a coordinated manner with its US and non-US partners to “achieve US objectives in Latin America and the Caribbean center[ing] on security cooperation and security assistance oversight that strengthens effective governance.” “[By] providing intelligence, equipment, training, or other benefits,” Ellis writes, “the partner [i.e., the US Army counterpart in a foreign country] is able to perform some particular activity or function that benefits US objectives, without the US having to do so itself.” But there is more at stake than just the “rule of law.” “Good governance also reduces vulnerability to populists,” Ellis adds, “whose actions isolate their countries from Western companies, banks, and governments . . . [and] plunge [them] into relationships of dependency with China, in ways that challenge their own security as well as that of the United States and of the region.” Whereas in the twentieth century such efforts were directed against Soviet ideological and political influence in Latin America, in the twenty-first they are primarily against China’s increasing economic inroads in the region. China’s trade with Latin America and the Caribbean grew twenty-six-fold from 2000 to 2020. It was nearly $450 billion in 2022 and is expected to reach $700 billion by 2035; the US, by comparison, is now at $900 billion in trade with the region but it is expected to continue losing share to China.

To counteract this, the US Army Southern Command is engaged in anticorruption activities as one of the implementation agents of the Foreign Corrupt Practices Act (FCPA). The FCPA directs US agencies to fight corruption not only by US companies abroad but also by local companies in sovereign countries, basically removing any limits on what or who they can investigate, sanction, remove, or seek to influence. A case in point is the coordination of the CIA and FBI with Brazilian prosecutors in the arrest and jailing of Brazil’s president Inácio “Lula” da Silva on corruption charges in 2017–2018. Lula’s removal “opened the door to far-right candidate Jair Bolsonaro, who came to power with the support of the United States and powerful corporate interests.” In may 2019, the FBI announced that “more FCPA investigations involving Latin America should be expected.”

This is typical of lawfare in the twenty-first century. Under the FCPA, the US armed forces, the Department of Justice, and the FBI work in a coordinated manner within an integrated, whole-of-government effort to achieve US objectives in Latin America. Lawfare coups have not been limited to Republican administrations. Democratic administrations, too, have historically promoted and supported right-wing instead of progressive governments in Latin America. US Latin America policy has been consistently right-wing in the sense of prioritizing “US business friendly” governments and anti-leftist politics, regardless which party is in power in Washington. Both parties have used overt military intervention—as in Grenada (Reagan, 1983), Panama (Bush, 1989) and Haiti (Clinton, 1993)—or covert intervention—as in the Bay of Pigs (Kennedy, 1961) and Chile (Nixon, 1973)—or lawfare—as under President Obama and his secretary of state Hilary Clinton. The pattern continued under the Trump administration with the prosecution of Lula, and there is no sign it has ceased under President Biden.

US foreign policy under both parties has failed to promote progressive labor practices or economic justice in Latin America. A fairer distribution of the economic gains from multilateral agency development finance or public-private investment flows has never been a priority for either party’s foreign policy. (This is one reason why there is a never-ending stream of migrants from south of the border, seeking a livelihood in the American Dream that is unavailable to them in their home countries.) Rather, the focus has been on keeping geopolitical opponents out of Latin America, even if that means supporting and putting in place autocratic and repressive regimes.

Characteristics of Lawfare

These are the elements of lawfare as enacted in Latin America: 1. staff the judiciary with right-wing judges and prosecutors (in Latin America it is done by appointment, whereas in the US it is by appointment and direct election); 2. plant news articles in the press and social media alleging misconduct or corruption by politicians in office who do not kowtow to a right-wing agenda; 3. have a partisan judiciary investigate and charge these politicians (in Latin America, it is often the judiciary that not only judges but also investigates and prosecutes criminal cases); 4. cancel them by criminalizing them, either tying them up in court, removing them from office, jailing them, or impeding their return to electoral politics; or 5. cancel their executive actions and/or policies.

Judicially canceling politicians on flimsy corruption charges has been used successfully against various democratically elected presidents, not only Brazil’s Lula but also his successor Dilma Rousseff and Ecuador’s Rafael Correa, and it has been attempted repeatedly against Argentina’s former president and current vice president Cristina Fernandez de Kirchner. In the US, politicians are generally not canceled (yet), but policies are, and clearly it works.

Fighting corruption around the world is a necessary and noble undertaking. It is a real problem in Brazil, in Argentina, in Italy, in the US, and elsewhere. Corruption undermines the economy and trust in governing institutions; it disrupts the level playing field we all want in our commercial dealings. When it is misused as a pretext to falsely incriminate politicians, or selectively used to delegitimize political opponents who may not sufficiently align with US foreign policy, it takes credence away from true anticorruption efforts. When corruption charges become a smokescreen for getting rid of duly elected progressive politicians what we get is the corruption of democratic politics and the corruption of anticorruption efforts—it is doubly perverse. Mike Koehler, professor at Southern Illinois University School of Law, has argued that “the United States’ crusade against bribery suffers from uncomfortable truths and double standards.” He reveals through case studies how the US government, through its actions abroad, participates in bribery, has knowledge of and supports private-sector bribery, enforces bribery laws very inconsistently, and engages in overblown rhetoric against corruption. In short, the US uses anticorruption selectively for its own geopolitical purposes. Koehler asks us “to pause and reflect on whether the United States is indeed in a ‘unique position to spread the gospel of anti-corruption’ or on the ‘right side of history,’” given how corruption is institutionalized in Washington politics, in congressional lobbying, in campaign financing, and in the revolving door between public office and private-sector jobs.

Despite the stated anticorruption goals of the Justice Department’s OPDAT, the fact is that Latin American right-wing judges and prosecutors have systematically used the tools and techniques provided to them by the US to discredit, block, and undemocratically remove progressive politicians throughout Latin America. Alleged corruption has been the most often used pretext.

Latin American Lawfare Cases

Common in all the Latin America cases of lawfare is lack of due process and flimsy evidence, unproven accusations of corruption or overreach of office, and unremitting amplification of these accusations on TV and other media aligned with right-wing politics. Latin America’s many Fox News–like channels relentlessly feature indictments and investigations by partisan courts and prosecutors, crippling elected leaders’ ability to govern by first criminalizing them in the court of public opinion and then jailing them under false pretenses. Again, the prosecution of Brazil’s president Lula da Silva is a paradigmatic case. In 2017 he was condemned to nine years in prison—later increased to twelve—after being accused of receiving a beachfront apartment as a bribe, along with other kickbacks. The apartment was owned by somebody else, he never used it or lived there, and evidence by seventy-three witnesses either testifying against the accusation or not backing it up was ignored. After serving several years behind bars, his conviction was vacated in 2021 by a Brazilian judicial review and denounced by the UN, both of which concluded the prosecution and jail sentence were without due process.

A different and rather creative lawfare tactic was used against Lula’s successor, Dilma Rousseff, who was president of Brazil from 2011 to 2016, when she was impeached after being charged with “a crime of responsibility”—a charge without precedent. She was accused of using an improper accounting method to report less government deficit during a certain period in order to frontload antipoverty government spending programs. Even though this was not a criminal offense and had been done for different reasons in the past by other governments, this was the legal pretext for her removal from office. At the time, the Guardian reported: “Rousseff’s achievements in office were mainly an expansion of equality policies put in place by her predecessors, particularly the bolsa familia poverty relief program, which now reaches almost 14 million households. Thanks to affirmative action and wider access to higher education, university enrolments jumped 18% during her first term. Since 2009, 2.6 million homes have been delivered by the government housing program—Minha Casa Minha Vida.” Rousseff’s successor, Michel Temer, head of the center-right party Brazilian Democratic Movement (MDB), received an immediate endorsement from the US State Department.

In Argentina, left-of-center former president Cristina Fernandez de Kirchner has been and continues to be repeatedly harassed by politically opposed courts under a variety of corruption charges and other pretexts, including treason and the outlandish charge of ordering the assassination of a prosecutor who committed suicide. According to Celag (Centro Estratégico Latinoamericano de Geopolítica / Latin American Strategic Center for Geopolitics), between 2004 and 2022 Cristina Kirchner was accused in court of wrongdoing 654 times, with the peaks in accusations occurring in pre-electoral years. In December 2022 one of the accusations resulted in a conviction by an Argentine federal court. She was convicted of “fraudulent administration” concerning road construction in the province of Santa Cruz, despite the fact that expert witnesses testified the work was performed as planned and that the invoicing had no abnormalities. The three judges in the case set a six-year prison sentence and proscribed her from holding public office in the future.

Recent text message phone leaks and photos reveal that one of the judges, who was also the prosecutor in the case, Julian Ercolini, went on a vacation junket in October 2022 by private jet to an estate in Patagonia with several senior executives of the Clarin news conglomerate (the Fox News Corporation of Argentina), and that he lied to cover it up. Right-wing politicians and senior intelligence services officers were also on the junket, which Clarin paid for. (Clarin backs the right-wing former President Mauricio Macri, who succeeded President Kirchner, pretty much as Fox News backed Trump.) The leaked conversations reveal not only the participants’ attempt to cover up the junket by lying to the press but also clear misogynistic attitudes and political antipathy towards Kircher.

Kirchner has strong support among vast sectors of the electorate, which accounts for her having been elected several times to congress as well as the executive branch, and she is currently serving as vice president in an alliance with a centrist president, Alberto Fernandez—same last name, no family relationship. This recent court conviction comes on the heels of an assassination attempt against her in September 2022. She survived because the gun—aimed from just a few feet away—misfired. The investigating prosecutor and the judge in charge of the case are currently at odds over whether to bring the perpetrator to trial or to seek more information that may implicate those who allegedly were the brains and instigators behind the crime. The fact that the police “accidentally” erased the perpetrator’s mobile phone before its contents could be explored, and that the investigating judge rushed to trial before digging deeper into leads connecting to Macri’s sphere, have created suspicion of a cover-up. (The prosecutor in the case wants to keep investigating.)

For an outside observer, it is very difficult to independently assess the truth or falsity of the corruption charges against Mrs. Kirchner given the numerous irregularities, violations of due process, fake news, and political machinations surrounding the trial. The case encapsulates the ways in which judicial processes and structures have been co-opted to serve political purposes.

The mechanism followed in Argentina against Kirchner is classic lawfare. First, the Consejo de la Magistratura (Council of Magistrates), which appoints judges, was itself improperly staffed with right-wing judges. To accomplish this, the Consejo failed to apply its own regulations and impeded the appointment of independent judges by unduly accelerating some appointments and delaying others. Second, the lottery system for assigning cases to judges was rigged, allowing political cases to become assigned to a small number of right-wing judges overtly supportive of Kirchner’s opponent, Macri. This has been described as forum shopping in reverse—and is actually forum rigging. Third, ordinary government decisions were characterized as unconstitutional or criminal actions, like the “crime of responsibility” accusation against Dilma Rousseff. Finally, Kirchner government functionaries were put in “preventive prison,” in violation of established precedent and the penal code.

In short, Latin American lawfare is characterized by law improperly or selectively applied by prosecutors and judges who are put in place through rigged procedures to guarantee right-wing political outcomes. A cherished aspect of democracy versus autocracy is that democracy, via the judiciary and the legislature, has built-in corrective mechanisms against the executive exercising unbounded control over the body politic. Corruption of the judiciary perverts democracy at its very core. Democracy advocates would be remiss not to analyze the similarities with what is happening in the US.

Lawfare in the US?

How is this similar to what is happening in the United States? The Federalist Society and the Republican-dominated Senate worked long and hard to block President Obama’s judicial appointments and to fill the positions with right-wing activists. Mitch McConnell, the Senate Republican leader, and his colleagues set aside the historical norms that have attended Supreme Court appointments. He blocked Merrick Garland at the end of Obama’s presidency to clear the way for Neil Gorsuch at the beginning of Trump’s presidency and, in brazen self-contradiction, rushed Amy Coney Barrett onto the court in Trump’s final days. This is power politics as lawfare. In many states, two other developments are equally far-reaching: state courts are being filled with partisan extreme-right judges and prosecutors, and state legislatures are enacting voter suppression laws to restrict voting in poor neighborhoods. The Brennan Center for Justice at NYU Law School describes it thus:

The attack on the Capitol was the culmination of a monthslong effort to overturn the 2020 presidential election result. The campaign began with misinformation-driven efforts to delay and disrupt the tallying of votes and certification of electors in key states, including the filing of dozens of frivolous lawsuits. Trump himself pressured state officials, including the secretary of state of Georgia and state legislative leaders in Arizona and Michigan, to set aside election results in their states, declare Trump the winner and appoint his electors. After these attempts failed, Republicans in seven states still claimed that they were the proper electors in their states and signed false certificates purporting to cast their states’ electoral votes for Trump. Former law professor John Eastman proposed that Vice President Mike Pence, in his role as presiding officer during the joint session on January 6, could unilaterally count these false slates or refuse to count the duly certified slates for Joe Biden to deprive him of a majority and throw the presidential election to the House.

This is lawfare in full force, an attempt to sabotage a presidential election by invoking the law, yet abandoning the professional norms that justice requires. Hardline ideological commitments substitute for the kind of deliberative judgement based on shared overlapping values that the philosopher John Rawls taught us in his theory of “justice as fairness.”

The Brennan Center also reports how state legislatures are enacting laws whose purpose is to make voting harder by restricting the availability of secure drop boxes or mail-in ballots. Georgia’s SB (Senate Bill) 202 does that and also expands the legal rights of poll

watchers to observe elections without constraints by election administrators. Politically motivated prosecutions are to be expected under cover of Georgia’s new SB 441. Florida SB 90 does what Georgia does plus adding stricter voter ID requirements and limiting how nongovernmental organizations can help voters register to vote; and Florida SB 524 does what Georgia’s SB 441 does. Texas SB 1 similarly restricts voting with its own provisions against drive-through voting stations and mail-in ballots.

Clearly all these new laws are meant to restrict voting in neighborhoods with large concentrations of black voters, low-income voters, and workers who cannot afford to take time off from their jobs. It gets as perverse as preventing people standing in long voting lines in the heat from being given a bottle of water. This is all quite powerful engineering at the state and local level to wrest control of elections from independent electoral machinery and put it in the hands of partisan elected officials. It could mean the outcome of elections will be decided by partisan legislators and courts, and not the votes of the people.

A telling case happening in 2023 is the Republican-controlled North Carolina legislature asking the North Carolina Supreme Court to overturn the electoral districting approved by its previously Democratic majority legislature and supreme court, thus overturning the congressional and state legislative districts it approved in 2022, and again making the electoral maps more favorable to Republicans. Republicans won control of the North Carolina Supreme Court with a 5-2 majority at the end of 2022. If this court votes to overturn its own previous ruling this will be the third time in thirty years that it has done so. The previous ruling was meant to create a level playing field, favoring neither white nor black voters. This is straightforward electoral redistricting as Lawfare.

Is the politics of the US system of court appointments particularly open to Lawfare, and if so, how can it be reformed to avoid the systemic corruption of justice?

One might wonder whether prosecuting former president Donald Trump for his actions to prevent Joe Biden’s electoral win from being certified can be considered lawfare in return. As Ruth Marcus writes in a Washington Post editorial, it is evident beyond a doubt that Trump knew he had lost the election, knew he was interfering with the due process of law when he pressured electoral officials to “find the votes” to reverse his loss, and that he at worse plotted and at the very least aided and abetted the violent march on Congress and its occupation by force by an armed mob in order to impede the lawful certification of the vote. She cites the Department of Justice’s Principles of Federal Prosecution: “The fact that the accused occupied a position of trust or responsibility which he/she violated in committing the offense, might weigh in favor of prosecution.” She concludes, “There is no greater position of trust or responsibility than the presidency, and no one who so flagrantly and repeatedly abused that trust more than Trump.” Trump’s actions to subvert the peaceful transition of power did happen, were illegal, and were a major offense against democratic principles and process, whereas in the cases of Lula and Kirchner the prosecutorial charges were completely fake and proven so. Prosecuting a president is not per se lawfare. Falsely prosecuting on spurious grounds is.

Having won a majority in the House of Representatives in the midterms, the Republicans are opening investigations into Biden and the Democrats for a host of charges, including corruption. Hearings are already underway involving Biden’s son’s business dealings, the handling of classified documents, and waste and fraud in unemployment funds and stimulus funds. (The tactic harkens back to the earlier assault on post–New Deal governance by Newt Gingrich, who toppled House Speaker Jim Wright on corruption charges in the late 1980s.) Such investigations on the legislative side would complement the long-term approach of the Federalist Society, which funds and promotes the placement of right-wing lawyers into judiciary positions from which they support a right-wing political agenda. Legal training and mentoring are part of the process. Innovative legal arguments like the “major questions doctrine” are put forward by SCOTUS to block progressive policies. Also known as the “major rules doctrine,” it holds that “if an agency seeks to decide an issue of major national significance, a general delegation of authority may not be enough; instead, the agency’s action must be supported by clear statutory authorization.” How this works was shown in a 2022 decision in which the court held 6-3 that the Environmental Protection Agency (EPA) “lacked the authority under Section 111 of the Clean Air Act (CAA) to set an emissions cap for greenhouse gases. . . . Applying the ‘major questions’ doctrine, Chief Justice John Roberts, writing for the majority, explain[ed] that Congress must provide [the] EPA with clear authorization for it to cap carbon dioxide (CO₂) emissions at a level that would ‘force a nationwide transition away from the use of coal to generate electricity.’”

With such decisions, SCOTUS and many state courts are arguably usurping executive power in order to undo democracy, becoming not a coequal branch but a power above the executive branch, using the legal system as a weapon to enact the will of an extremist minority that has outsized influence in conservative media and campaign financing. After taking over the judiciary, it is a short step to guaranteeing continuous control of Congress through elections that exclude many. This is how democracy becomes a shadow of itself, unrepresentative, merely procedural, and no longer a self-correcting system of checks and balances.

It seems that judiciary processes and techniques developed for export to Latin America are now being applied right at home in the US, and then some. Ironically, the lawfare pursued in Latin America under Democratic and Republican administrations alike has been appropriated by the US right to further extreme right-wing policies at home and to block the agenda of the Democratic Party.