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Are we in a crisis? Learning from Trump’s lawfare endgame

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Is there a crisis in the United States, as many commentators would make us believe? If so, what is the nature of that crisis? It has become very fashionable to speak of innumerable ‘crises’ while most of these events can be traced to something far deeper, namely lawfare. It is becoming increasingly clear that the use of lawfare has been Trump’s game plan from the beginning until the end of his administration; accordingly, he is now seeking to bypass the will of the voters and entrench himself in the White House.

Marchers with signs at the March on Washington, 1963. Source: Library of Congress Archive https://www.loc.gov/pictures/item/2013648849/.

Americans, and indeed people around the world, have tried to make sense of the US election, in particular its incomprehensible system of tallying Electoral College votes, as well as a plethora of legal challenges to elections across the country. A quick scan of the latest news items from around the world reveal claims of a range of nebulous ‘crises’ in the US: a political crisis, a crisis of democracy, a constitutional and potentially post-election crisis, a crisis of bourgeois democracy, and even a crisis of the American Dream.

But do any of these depictions of ‘crisis’ really help us understand what has been happening? And why is it that the courts rather than the voter (or Electoral College for that matter) seem to end up deciding an election, as Trump hoped would happen for this presidential election when he complained about electoral fraud?

Simplistic descriptions of ‘crises’ without a deeper examination of the root causes won’t help us understand what is transpiring. As my ISS colleague Karim Knio has consistently argued, we should not waste a good crisis. Accordingly, he insists that one must resist the simplistic tendency to speak of a crisis IN or a crisis OF something, but rather should seek to understand the potential of such events to trigger political change.

To be sure, this is not to dismiss the importance of potentially calamitous events – whether they are political, economic, ecological, sociological or indeed medical (the COVID-19 pandemic comes to mind). However, the crucial thing is to learn from how such events have been (mis)managed to get to the underlying causes. In other words, explaining the pedagogy of crisis management is much more important than the crisis itself.

Amidst a cacophony of voices, each seeking to provide their own explanation of the ‘crisis’ in the US, and even how to solve it, very few speak of the underlying reasons why the US is in such a mess. This is a far more fundamental matter, including the insidious ways in which law is instrumentalised to suppress basic democratic and legal values, and indeed to suppress people as well. I argue that the illegitimate misuse of the legal system in the US through the use of lawfare is underpinning many of these ‘crises’.

It was evident from the very beginning of the Trump administration that it would use lawfare to accomplish its goals. Lawfare is about instrumentalising law to suppress people and to undermine rule of law values. This use of law assumes “delegitimising and oppressive forms, justifying retrogressive policies and even reinforcing the hegemonic actions of states”.

Throughout the four years of the Trump administration, there has been an expansive mis-use of the law through lawfare to accomplish what would otherwise have been impossible through legitimate legal procedures. All branches of government have been affected by it. In the legislature, following an impeachment by the Democrat-controlled House of Representatives, Trump’s strong alliance with key members of the Republican-held Senate ensured that, through lawfare, he would be duly acquitted in a sham trial that failed to call any witnesses. Trump also waged lawfare in the judiciary: he appointed two Justices with right-wing political views – Brett Kavanaugh and Amy Comey Barrett – to the US Supreme Court, the latter one week before the presidential election. But most of all, Trump made extensive use of lawfare by way of executive orders, from the so-called ‘Muslim ban’ to the separation of migrant children from their families after being detained at the US border.

Trump was hardly the first president to make use of Executive Orders—Bush and Obama made extensive use of them as well. Indeed, Trump capitalised on this expansion of executive power. Notwithstanding their shaky legality (they were frequently overturned after being challenged in court), it seems that this form of lawfare has mainly been intended as a source of distraction, for example from the administration’s ‘dangerously incompetent’ handling of the COVID-19 pandemic or the Republican party’s systematic unravelling of the US social safety net.

However, Trump arguably took lawfare to a whole new level in the context of the 2020 Election. In the run-up to the election and even as Biden was proclaimed victorious, lawfare has been Trump’s principal strategy, his endgame for attempting to win re-election in 2020 by way of voter suppression, which another commentator refers to as a ‘crisis’ in itself.

Voter suppression through lawfare has a long history that is rooted in the country’s racist past. This has involved the systematic use of lawfare at municipal and state levels, and has taken various specific forms. A common form has been to require voters to produce specific IDs, based on a spurious claim (i.e. little to no evidence) that voter fraud was rampant. A second form of lawfare has been to exclude those with a previous felony conviction (i.e. record of having committed a serious crime). A further form of lawfare has been to re-design voter districts so that Republicans have a greater chance of winning elections according to a particular set of demographics. Much of these lawfare aimed at voter suppression were pushed by a private organisation known as the American Legislative Exchange Council (ALEC).

In the weeks prior to election day on 3 November, Trump and his associates issued frequent warnings of the potential for voter fraud, citing mail-in ballots as a major cause. As often accompanies lawfare, there was little to no evidence for making such claims.

By 8 November, it became increasingly clear that Biden would win the US Presidential election by more than 4 million votes. By then he had already collected well more than the 270 electoral votes needed to win and was on track to secure more than 300 in total. Accordingly, every single major US news network—including the Trump-friendly FOX news— projected by 8 November that Biden would win the election.

The response of Trump and his associates was not to concede, but to step up their lawfare game by launching multiple lawsuits in different states, albeit lacking the support of large law firms that are required to mount such complex litigation. As with many other previous lawfare actions, this action was also led by former New York mayor Rudy Giuliani, again alleging ‘fraud’, though still based on little to no evidence. Nevertheless, these false allegations have been bolstered by Trump’s allies in the Senate—in particular Lindsey Graham and Ted Cruz—all aimed at questioning the legitimacy of the 2020 presidential election, or potentially at maintaining the Republican voter base.

This all reveals the importance of learning how lawfare has been used to undermine fundamental pillars of governance. Despite the claims of pundits that the US is facing innumerable, unspecified crises, the biggest crisis facing the US is much deeper and fundamental. It is a crisis in how lawfare is systematically used to undermine the very fundaments of liberal democracy and, most recently (and visibly), the integrity of the electoral system.

Learning from how Trump and his associates have misused the law through their disingenuous campaign of lawfare is also key to understanding why challenging the election is not as important as Trump’s lawyers make it out to be. Lawfare is used to exclude legitimate voters and to foster a deep and growing polarisation that will make it all the more possible for right-wing Republican candidates—even those with no qualifications or experience other than starring in a reality TV programme or running loss-making businesses—to seek presidential office in future.

In other words, Trump’s endgame of lawfare is a crude strategy for undermining basic principles of governance in order to secure re-election. While this strategy of polarisation is proving unlikely to work for this election, it may well secure a Republican victory in future.

About the author:

 

Jeff Handmaker

 

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

 

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Countering attempts to undermine the rule of law through lawfare in Suriname by Jeff Handmaker

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In November 2019, an all-women panel of judges presiding over a decade-long court martial in Suriname convicted Desiré Delano Bouterse, the country’s current president, for international crimes that include torture and extra-judicial executions. While legal mobilisation can legitimately be used to bring about justice, Bouterse and his supporters have used lawfare to try to prevent his trial from proceeding. The trial eventually took place and Bouterse was sentenced to 20 years in prison, while some of his co-accused were acquitted. Bouterse remains in office following the judgement, and it now remains to be seen whether legal mobilisation will triumph over ongoing attempts to use lawfare to undermine the rule of law.

The December Murders

Apart from its historic significance, the case against Bouterse and his co-accused for international crimes is a vivid illustration of the use of lawfare and legal mobilisation, both of which I have been following closely as an independent trial observer and as a researcher generally. The case concerns events that took place in December 1982, referred to by many as the so-called December Murders, at the time when Bouterse served as a commander in the Suriname army after having participated in a military coup. Various accounts of the events reported that 16 men, a combination of civilians and soldiers, all of whom were openly critical of Bouterse, were arrested in the middle of the night, brought to a military base at Fort Zeelandia (dating back to the colonial era), lined up against a wall, and shot. The bodies were brought to a local hospital for investigation, where it became evident that the men who perished had not only been executed without a trial, but had also been tortured.

A trade unionist who managed to survive the incident, Fred Derby, later filed an official statement about what had happened in 1982, which became a crucial part of the evidence presented once the court martial was established in 2007. Three years later, in 2010, despite the ongoing trial, Bouterse was elected president, a position he subsequently used to hinder the trial’s development.

At the time the court handed down its judgement in November 2019, which had been twelve years in the making, Bouterse was abroad on a trade mission in China. He returned to Suriname a few days later, perhaps after obtaining confirmation that a warrant for his arrest had not been issued, receiving a large and enthusiastic welcome at the airport from his supporters. Statements made through his lawyer questioning the legitimacy of the court’s judgement, and which undermine the rule of law, have been published in the local media.

Using lawfare to bend the law in one’s favour

As head of a trial observation mission appointed by the International Commission of Jurists (ICJ) in Geneva, I have been following this trial closely since May 2012. The case has revealed several examples of lawfare, whereby numerous law-based manoeuvres on the part of Bouterse himself, as well as his legal representative, his appointed officials, and members of his political party in the legislature have sought to undermine the rule of law in Suriname, and, more specifically, to stop the trial from taking place.

The court martial took over a decade to issue its judgement, during which period there was extensive use of lawfare to either delay or completely shut down the trial. These included legislating an Act of Amnesty (later declared by the court to be unconstitutional), ordering the prosecutor to suspend the trial, and otherwise seeking to interfere with the prosecution process through replacing the Minister of Justice. Neither of these lawfare efforts were successful and the court’s judgement stands.

The case has also revealed many examples of legal mobilisation, whereby various actors have played different roles to counter the use of lawfare and uphold the rule of law. The families of those who were murdered have continually campaigned to have Bouterse and his accomplices brought before an independent criminal tribunal. During the trial itself, international organisations such as the ICJ have called for the respect of international fair trial standards, and journalists (mostly local) have consistently sought to ensure that the case was correctly reported. In all instances, rigorous attention to the correctness of law-based arguments were a prominent feature during the trial that spanned several years; this proved to be an effective strategy, aimed at preserving the fair and equal application of justice and the rule of law in Suriname, values that are widely shared in the country following hundreds of years of colonial rule.

Reactions to the trial

While several prominent news outlets, including several in the Netherlands, as well as the Associated Press, Al Jazeera, the New York Times, and the BBC briefly reported on the judgement, the trial itself has not enjoyed much attention outside of Suriname. Inside Suriname, however, there have been extensive reactions from various actors who have been closely involved in the case, either seeking to uphold or undermine the rule of law.

Betty de Goede, a leader/founder of the Organisation for Justice and Peace (OJP) in Suriname, which represents many families of those who were killed in December 1982, observed at an inter-denominational service organised by the OJP that the rule of law held much value to the people of Suriname, and hence “the judgement (against Bouterse) cannot be ignored”. At the same service, Soeshila Baldew-Malhoe, a prominent Hindu theologian in Suriname, was more strident, declaring that while “Bouterse had no respect for the rule of law” he was warned that

… people must know that every action has consequences. Mr. Bouterse should have known then that the truth would one day come to light … it gives a good feeling to know that the rule of law is alive… everything depends on the rule of law, and when justice is given, everyone must adhere to it, regardless of the person’s social position.

Ignoring potential repercussions against them, the legal community in Suriname has been active and outspoken, including attorney Gerold Sewcharan, who represented Edgar Ritfield, one of Bouterse’s co-accused. Ritfield was one of those acquitted by the court, and characterised Bouterse as a “convicted felon”.

However, a warrant for Bouterse’s arrest has yet to be issued, and in the meantime, there have been efforts to politicise the judgement and undermine the judiciary. One of the main opposition parties, the “Democratic Alternative” (DA), published an Open Letter to the president, calling on him to resign. This has, however, not caused Bouterse to reconsider his decision to remain in power, nor has he lost credibility within the political party he chairs, the NDP, which has condemned the judgement as being “politically motivated”. Whatever happens next, it is certain that many more people, both in Suriname and abroad, will be following the outcome with considerable interest and anticipation.

Image Credit: sunsju on Flickr

JeffHandmakerISS
About the author:

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here. 

 

 

Toward greater tolerance? Ethno-nationalist lawfare and resistance through legal mobilisation by Jeff Handmaker

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JeffHandmakerISS_smallAbout the author:

Jeff Handmaker teaches law, human rights, development and governance and conducts research on legal mobilisation at the ISS. He is also an associate member of the Faculty of Law at the University of the Witwatersrand in Johannesburg, Editor-in-Chief of the South African Journal on Human Rights and a member of the EUR INFAR Project.

In September 2014 Henk van Oss, a caravan dweller and member of the Dutch traveler community, received a letter from the Dutch municipality of Oss. Condolences were expressed for the recent death of his mother. And, in accordance with the Dutch “extinction policy”, he was informed that the permit for his mother’s caravan had been withdrawn and that he had to leave. His story of ethno-nationalist lawfare and the struggle for citizens to defend themselves reveals the importance of research on the contested terrain of legal mobilisation.

Victory for van Oss

Mr. van Oss, who had cared for his mother until her death, did not accept the municipality’s demands. He came in contact with the Dutch organisation Public Interest Litigation Project, who took his case to the Netherlands Human Rights Institute and brought a legal claim against the municipality of Oss. While the legal battle continued for some years, it was ultimately successful. The Human Rights Institute declared that the actions of Oss Municipality were unlawful. The courts (on appeal) declared that the municipality had acted illegally by withdrawing their permission for the caravan stand.

It was in some respects a legal tale of David and Goliath.  From an analytical standpoint it was a classic case study of how ethno-nationalist lawfare to end what the Dutch government regards as an undesirable cultural practice met the counterpower of the Sinti, Roma and Traveler community, who used strategic litigation, a form of legal mobilisation, to claim their rights.

The traveler community: A precarious existence

The history of the Sinti, Roma and Traveler community in Europe is not an altogether happy one. Historicially, the community travelled for economic opportunities or to escape persecution. But this wasn’t always enough. During the Second World War, several hundred members of the community were arrested and deported from the Netherlands by the Nazi occupation authorities. They were sent to concentration camps; most died. While the number of persecuted travelers in the Netherlands was relatively small, they met a similar fate as several hundred thousand other travelers did across Europe.

Ander-kamp-Oss-in-2013-grotendeels-ontruimd-3
A modern-day caravan in the Netherlands.

Over the course of the past few decades, a range of restrictive legal measures have been taken against Sinti, Roma and Travelers by both national and municipal governments across Europe. These measures frequently reflect ethno-nationalist, autocratic tendencies rather than the values expected of liberal democratic states. Such measures are also rooted in populism. They are framed by over-exaggerated perceptions of criminality and sometimes invoke the mantra of integration or even emancipation as a thin, and disingenuous form of justification.

It is not surprising, therefore, that the Dutch “extinction policy”1, largely implemented at the municipal government level, and sometimes containing a benevolent, moral message aimed at improving the socio-economic conditions of the community, is met with such revulsion and hostility. Ultimately, the government’s legal measures represent an oppressive use of law, with the overall aim of reducing, if not completely eliminating the community; in other words, these measures are a form of lawfare.

Resistance through legal mobilisation

Meanwhile, civic-led, law-based efforts to protect members of the community facing discrimination and to advocate for more rights-respecting policies make it difficult for such restrictive measures to take hold legally, particularly at the local/municipal level. These efforts serve as a counterpower to the exercise of ethno-nationalist lawfare against these legally-recognised ethnic groups.

As I argued in a paper presented at the Dutch-Flemish Socio-Legal Studies Association (VSR) in January 2018, legal mobilisation as an analytical lens can help to explain the potential for civic-led legal instrumentalism to protect groups against retrogressive measures by the state. According to my colleague Sanne Taekema, Professor of Legal Theory at Erasmus School of Law and leader of the project on Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR) in which I am also participating,

traditional separation or balance of powers focuses on formal mandates of public actors and their interactions. Given the fact that in many states executive and legislative powers have become strongly intertwined, a veritable trias politica is merely an ideal.

Taekema’s research explores whether a model of balance of powers can be extended to include non-state actors. Together, we are investigating whether it is possible to revise the theory to include counterpowers outside of the state and serve as “direct and indirect checks” on government abuse of power. More broadly, my research explores how an analytical lens of lawfare can explain governmental-led instrumentalisation of law against communities, such as the Sinti, Roma and Travelers community, and how an analytical lens of legal mobilisation can explain the strategic potential of law-based, civic-led social justice claims.

A legal mobilisation lens: Useful in practice

The usefulness of a legal mobilisation lens is is further affirmed by Dutch attorney Jelle Klaas, litigation director of PILP, who led the strategic litigation on behalf of Henk van Oss. The Amsterdam-based organisation pursues what it describes as strategic litigation, a concept that is in fact broader than what most legal advocacy organisations traditionally understand strategic litigation to be, and incorporates various forms of law-based, civic-led advocacy. Klaas has noted that

sometimes, alternative routes to justice are blocked. Sometimes dialogue and lobbying are ineffective on their own. In these cases, legal action may be necessary as a form of counterpower to curb government overreach or harms caused by corporations.

PILP’s work is about using legal action to bring about social, political or legal changes. The goal is not necessarily to win a case for a particular client. Strategic litigation complements other ways of bringing about change: from lobbying and advocacy to community organising and protests. According to this approach, an organisation focused on strategic litigation should act as an ally to activists, NGOs and grassroots organisations. Klaas further explains PILP’s litigation strategies:

Usually, the aim is to go to court for a legal victory, but sometimes you can win by losing a case. Where injustice is exposed and publicity generated, there is often an opportunity for non-state actors to be a form of counterpower, regardless of the outcome of the case.

Conclusion

The case brought by Henk van Oss was “won” by PILP-supported lawyers in 2017, albeit not on the grounds of human rights violations as PILP had hoped and eloquently argued for. However, the case elevated the plight of Sinti, Roma and Travelers to the national spotlight. Furthermore, in laying out a detailed dossier of state-based discrimination, the case produced a vivid portrait of the community, giving the legal issue a human face and according credibility to the Sinti, Roma and Traveler movement’s campaign to end discrimination.

Beyond this particular issue, I feel it is crucial to understand the dynamics of legal mobilisation, both in a specific case and – generally – as a form of counterpower against lawfare exercised by state and indeed corporate actors. In this regard, context always shapes the socio-cultural possibilities for legal mobilisation. Furthermore, it is crucial to understand the structural bias embedded within national and international laws that condition the opportunities for exercising agency. Finally, the existence of structural bias, carefully leveraged, can form a powerful basis for advancing a social justice claim.

1The “extinction policy” is known in Dutch as the “uitsterfbeleid”.