For more than a year, House Judiciary Committee Chair Jim Jordan (R-OH), and others have vilified nonpartisan professionals at the Justice Department, including prosecutors and the FBI, as tools of a conspiracy by partisan Democrats to prosecute Republicans—especially former President Donald Trump. What do they say now that it turns out that this “Democratic conspiracy” has prosecuted more prominent Democrats than Republicans?
In fact, among the most prominent names—Hunter Biden, Sen. Bob Menendez (D-NJ), and now New York City Mayor Eric Adams—the count is three to one. Trump stands alone among powerful Republicans under federal prosecution in the past year. It makes Jordan’s claims that “Americans see through Democrats’ lawfare tactics” and his accusations against prosecutors of ” targeting and hatred of conservatives” look pretty hollow.
What’s more, it undermines the entire idea for Jordan’s Select Subcommittee on the Weaponization of the Federal Government. The Committee’s work now looks more like a part of the Trump strategy of projection—claiming your enemies are doing the very thing you are trying to get away with.
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In this case, it’s interference with the justice system. Not only have Jordan and his committee tried to intimidate through subpoena prosecutors and FBI agents involved in the various cases of Trump, Jordan responded favorably when Trump demanded that, “Republicans in Congress should defund the DOJ and FBI until they come to their senses,” slamming Democrats for having, “totally weaponized law enforcement in our country!”
Unfortunately for Trump, Jordan gave the game away. Jordan wasn’t actually worried about prosecutors in general. Instead, he specifically requested—unsuccessfully—that federal funding be prohibited from going toward “a criminal prosecution against a former or current president or vice president”.
Many prosecutors like Rudy Guliani and Kamala Harris used their work as springboards for higher office. But they didn’t and couldn’t have succeeded by bringing baseless political prosecutions. They would have had to rely on career prosecutors to do the real work, and those government employees almost unanimously want no part of partisanship. And remember, you have to win to be famous. Bringing bogus claims that fail would bring ignominy, not advancement.
The trouble with our system of justice today is not that’s it’s toxically partisan. It’s that it’s clumsy and slow. The system has been easily tripped up by Trump who is a master of the American lawsuit having participated by some counts in more than 4,000 pieces of litigation. To the shame of the system, he has made sure the most important claims against him have gotten nowhere. He has blocked the Georgia prosecution for trying to defraud voters in 2020 with a ridiculous claim about the prosecutor’s love life. With the help of the United States Supreme Court, he has ground the main federal case about his fraud and the mob assault on the Capitol down to a crawl. He won a dismissal on a technicality of the Florida federal case about his handling of secret documents.
In the end, the best the American legal system could do was get a porn star hush money case to trial and a couple of cases for his personal and business bad behavior. No one will know before the election whether Trump is guilty of crimes related to insurrection, fraud, and endangering our national secrets.
Judges and lawyers should worry over how successful Trump and Jordan have been in damaging the institutions that protect American’s lives and property. Most lawyers and judges know how to stop it: courts must bar repetitious and frivolous motions, control chaotic and costly evidence gathering, and stop focusing on who brought the claim, where the claim was brought, and how it was stated, and focus instead on why the claim was brought and whether the person has committed the alleged wrongdoing.
As the attacks on justice continue, courts still have time for a course correction. Judges must replace their static management styles with dynamic case management. They must not leave lawyers free to frivolously or formalistically befoul litigation. For their own good, lawyers should see the futility of too many legal proceedings as potentially fatal to their own livelihoods. Until they do, the Jim Jordans and Donald Trumps will continue taking a wrecking ball to the rule of law.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.
