The outgoing Biden administration is wreaking slow-motion havoc on America. Plans and projects of regime transformation, regulations, and new rules to tie up the law in both straightforward and convoluted ways, and other actions to hastily circumvent MAGA, are being ginned up and rammed through as Biden goes out the door. These perversions of executive authority, at once reckless and carefully designed, plainly sweeping and seemingly trivial, are a fitting epitaph for the lawless and incompetent Biden administration. That doesn’t make them any more palatable, of course, and the question is what to do about it.

Starting January 20, the Trump administration can deploy a limited lawfare, narrowly tailored to punish present and former executive-branch officials who figured they could get away with setting America on paths which it would be ill-advised to take by means as peremptory and Machiavellian as the officials imposed (or attempted to impose) on the country.

Limited lawfare doesn’t have to concern only actions in the interregnum between an incoming and an outgoing administration. But a presidential interregnum is ideal for showing how limited lawfare can work. For one thing: it focuses mainly on government operatives, not largely on private citizens such as the J6 protesters. This reminds us that U.S. district attorneys and their subordinates are not exempt; real light can thereby be thrown on the false braying of progressives about “the rule of law.” Matthew Graves’s actions, and not only in the interregnum (he resigned last week as U.S. Attorney for the District of Columbia), invite particular scrutiny.

Also, charges need not be brought only in Washington, D.C.; they can be brought in any area of the country affected by miscreant officials’ actions.

One priority of limited lawfare this year might be the targeting of officials making -- since the election but before Trump takes office -- hastily-contrived legal changes that expand or solidify immigration. Another might be the targeting of officials who in that same period provided money and weapons to Ukraine from the discretionary budget, and of American intelligence officers who give Ukraine indispensable military-target information.

Officials in the Biden administration are the ones indulging in institutional trickery right now. They are the correct recipients of limited lawfare. The Trump administration’s lawfare can be restricted to these people, and not engaged in more widely.

As always, the problem is identifying all the culprits. To do this, the general approach should be to start with the person(s) with the ultimate line authority in the relevant segment of government, while keeping in mind that two or more segments of government might be involved in any given perversion of executive authority. Then unspool the thread down to, say, the GS-15 level of federal government officialdom. Work from the top to the bottom, and not the other way around. Apply a sort of upside-down subsidiarity principle, whereby the highest explicable -- or formally responsible -- government official is the person to target first in every offending executive-branch segment. For practical purposes, administrative-branch officials, whose authority formally stems from the executive branch, will be included.

Narrowly-tailored lawfare is not only justified in extreme circumstances (such as we seem to be seeing with the Biden administration in its nihilistic panic about its expiration date), but may be necessary to limit the damage, especially in the longer run by discouraging such activities via the threat of the lawfare cudgel.

As a hypothetical illustration, suppose we know that some Chinese agents in an isolated building in Chicago are about to unleash a devastating virus on the country, and the best way to stop it, and prevent the virus from escaping, is to unexpectedly hit them from all sides with flamethrowers, in contravention of international law after World War II, which strictly forbids the use of flamethrowers against an enemy. That’s what limited lawfare amounts to. It ain’t pretty, but it’s eminently salutary in how well it gets the job done. Nothing else may work quite so well.  Call it “tough justice,” akin to tough love.

What if limited lawfare is abused? If it is, we will take that to be a lesson learned -- in the very process by which payback (“a dose of your own medicine”) is administered. We will know then what to avoid in the future, whether it be only the unlimited lawfare as practiced by Democrats in recent years (with the scandalous support of most law professors), or whether limited lawfare also presents unacceptably great risks.  Let experience be our guide.

Limited lawfare scales down lawfare in the same way that John Rawls’s “Political Liberalism” scales down liberalism. Although a full theory of justified lawfare may eventually be needed, limited lawfare is intuitively a plausible conception. We simply construe justified lawfare as that which is narrowly tailored and directed at a well-defined class of government officials. Thus, Trump’s corrective lawfare will be weighed against the degree of the manipulativeness, peremptoriness, and maliciousness of certain actions of the outgoing Biden folks. (The Supreme Court loves weighing X against Y.)

In short, this nascent theory of limited lawfare is a calibrated way of fighting fire with fire. It’s not dissimilar to Israel’s efficient and nuanced way of fighting Hamas and Hezb’allah. To Democrats abusing the tools of executive-branch power at the close of the Biden administration, just know that your current activities might come back to bite you. 

Image: AT via Magic Studio