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Remember that the post-2020 US election Time article "The Secret History of the Shadow Campaign That Saved the 2020 Election"? Somewhere between a victory lap and credit-claiming at a time it was generally thought Trump's political prospects were dead, it was a rare look behind the scenes of retroactively-admitted coordinated political obstruction and shaping efforts.
It was also the article with the memorable distinction of-
Well, the New York Times on Sunday published a more pre-emptive form of democratic fortification: The Resistance to a New Trump Administration Has Already Started.
The article in short is a look at different wings of the Democratic Party apparatus, and steps they are taking in anticipation of a Trump victory to foil the predicted efforts of the 2025 Project. Some of these fears seem a good deal less grounded than others- Trump has been an abortion moderate such that it's hard to see why a Democratic governor would need to stock years of abortion supplies in a state warehouse beyond political theater- but then the article is quite likely a form of political theater. As far as election-year advertising goes, it's both a 'here are all the horrible things that could happen' fear campaign-
-with the ACLU specifically focusing on four areas of potential lawfare-
-but all with a back-edge 'but we thwarted him before and can do it again' of tribal-protection promise.
Not necessarily optimistic, but a 'we will fight for you' solidarity / call for support framing.
While there is the occasional (potentially deliberate) amusing word choice in ways that anyone who has used the term the Cathedral might appreciate-
The core strategies include the following, none of which are particularly surprising but which are good to see identified clearly in advance:
-Passing executive actions in the Biden administration before certain timelines so that Trump can't immediately revert them
-Litigation waves to tie things in court, with recruitment of sympathetic plaintiffs with likely standing already occuring
-Implicitly by virtue of the acknowledged past strategies and current participants, more protests
-More explicitly legal preparations to prevent/limit federal intervention in protests
-A national-scale counter-ICE network to disrupt immigration raids
-Pre-emptively doing self-auditing of activist group finances in preparation of politically motivated IRS scrutiny
-Various state-based nullification theory application (such as 'inter-state commerce doesn't apply to FDA if I already have the goods in-state')
-Use of Never-Trump 'ex-Republicans' groups as part of the Democratic network, especially the Principles First organization.
(Principles First was a Never Trump wing of the Republican Party associated with Liz Cheney that started in 2022 during the anti-Trump former Republican establishment's efforts to reassert control / torpedo Trump's post-presidential prospects by cooperating with the Democrat-led impeachment trial. Since then, and her fall from the Republican Party, it's been casting itself as an alternative to CPAC. Interestingly it also works in concert with Ranked Choice voting lobbying. (In the US, ranked choice voting is often, but not always, associated with the Democratic Party, at least in the sense of pushing for it in Red / Purple, but not Blue, states.)
None of this is unique, unusual, or dangerous. Leftist NGOs and Democratic governors/AGs preparing for a potential second term of Trump. Sinister-sounding quotes like "controlling the flow of information" and "democracy-proofing our institutions" but nothing actually out of the ordinary in terms of real actions. I'll remind you that the vast majority of the actual escalation has come from Republicans. Remember J6? Remember "the election was stolen!!!" 70% of Republicans still believe that crap.
Trump will try some hamfisted executive orders, which will get massacred in the courts like much of his EO's did in his first term. He'll declare victory anyways, and the base will love him because they desire the appearance of "owning the libs" more than any actual substantive policy changes.
Where are the republicans inventing new legal theories to prosecute their political opponents? Where are the republicans forcing businesses to boycott their opponents organizations? Where are the republicans using partisan organizations assessments of their ideological opposites as a justification to enact a domestic spying program?
I don't think this is an accurate description of any of the Trump prosecutions. It mainly gets levelled at the falsification of business records case, on the theory that Bragg used a federal crime as the enhancer to kick it up to a first degree charge. But this isn't accurate. He used a state crime - New York Election Law Section 17-152. That charge itself refers to influencing an election by "unlawful means", and the unlawful means referred to in this context are violations of Federal election finance law, but my understanding is that it's well established by precedent that you can use federal crimes in relation to this statute. As always IANAL and I might be wrong. But as far as I can tell, although it's a bit of a convoluted approach to take, it's also one that specifically avoids using laws in unprecedented ways.
Republicans however certainly have invented new legal theories. They invented a new legal theory to overturn the 2020 election using competing slates of electors and having Pence refuse to certify disputed results. They invented a new theory to defend Trump by claiming Presidents have absolute immunity to criminal prosecution.
And, look, there's nothing wrong with inventing a new legal theory. You try it out, you test it in court, you see if it flies. And I think it's kind of natural for it to be the Republicans who are testing new ground here - the courts have become increasingly right wing (especially SCOTUS), and those new court majorities have different ideas about how laws should be interpreted. But if you're going to take the position that advocating novel legal theories for political purposes is some kind of no-no, then you really ought to be pointing the finger in the other direction.
The idea that trump reimbursing his lawyer for paying stormy Daniels to sign an NDA constitutes a misreported campaign expense is, however, totally a novel legal theory.
Notably, the Republican Party decided not to do this. Like, there weren’t competing slates of electors. Mike Pence had openly said he wouldn’t go along with that plan. The most partisan red state where Trump disputed the results had a state government- made up of all republicans- who told him to eff off. In fact, republican elected officials who could have turned it into a matter for the courts chose to admit trump lost. Not as a general rule, as a universal one.
I’ve yet to see even the smallest of small democrats opposing the lawfare, targeting of conservative groups, criminal cases invented out of whole cloth, attempts at censorship, etc.
What are the new legal theories embraced by the 6-3 majority on scotus? Name them. Their most controversial, and predictable, decision was dobbs, which even liberals mostly admitted would be legally correct. Pretty much all the precedent overturned by the changing balance of the court has been in the form of things like changing the constitutional test applied in x specific situation- hardly novel legal theories.
The closest thing to a novel legal theory pushed out of conservative courts would be kaczmyrak’s decision on mifepristone, which got stayed immediately and slapped down by scotus.
I take it you've never been to law school before, but it goes something like this: You read cases as your class assignments and the professor asks questions about them. Most of the questions are hypotheticals that change the facts slightly to see if you can apply the principles of the ruling to different situations. Then the professor poses a hypothetical that's nothing like the original fact pattern and asks what the result will be. Then when finals come you get more questions like that where nothing is exactly on point and you have to argue based on broad principles alone. Then you get to do the same thing in the bar exam, especially the multistate, where they might give you a fact pattern where you read it and you think "okay, the guy is clearly liable" and the final question asks "If the court finds that the defendant isn't liable, what is the probable reason?" and gives you four crappy answers from which you have to choose the most plausible.
As a practicing attorney, yes, most cases are boring and straightforward, and don't require too much creativity. But this isn't always the case. New situations require new legal theories. Look at autonomous vehicles; there's a whole universe of potential problems that could arise there that the law is seemingly unequipped to deal with, except through general principles. "No one has been convicted based on this specific fact pattern before" isn't a defense. This is especially true in the world of white collar crime, where the argument isn't so much that the defendant didn't do what the prosecution said he did but that what the defendant did wasn't a crime at all. Not everything is going to slot into convenient and obvious categories, and unless there's a viable legal argument for why a particular course of action shouldn't be a crime, a jury is going to get to decide.
I think what’s missing here is the background. The background is that a DA is supposed to prosecute crimes not persons. Bragg ran on prosecuting Trump (ie the person).
And then to get Trump, Bragg used a NY state law that hasn’t been used in god knows how long coupled with a very dubious theory of a questionable FECA violation as a predicate of the rarely used NYS law. Keep in mind the people with authority to prosecute FECA violations passed on this (both criminally and civilly). The prior DA passed. That should tell us something! It tells us about selective prosecution and show me the man and I’ll show you the crime.
AND, they had to first corner Cohen on other charges into accepting a plea deal in order to "establish" that a (uncharged, untried, undefended) crime had taken place which could then be used as the basis for charging Trump in such a convoluted manner.
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He didn't run on prosecuting Trump in the sense (as I have seen implied in some conservative outlets) that he made it a campaign promise. He ran on prosecuting Trump in the sense that he cited his participation in the AG investigation. In other words, he ran on his record, which is something every AG candidate does, especially when they were involved in a high profile case.
Here is one example
“Let’s talk about what’s waiting for the new DA. The docket. We know there’s a Trump investigation. I have investigated Trump and his children and held them accountable for their misconduct with the Trump Foundation. I also sued the Trump administration more than 100 times for (Deferred Action for Childhood Arrivals), the travel ban, separation of children from their families at the border. So I know that work. I know how to follow the facts and hold people in power accountable."
Sure he talked about what he did but the clear implication that he would follow through on prosecuting Trump.
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There's a fig leaf, but it's an embarrassingly narrow one.
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