In recent years, the term “lawfare” has gained prominence in legal and political discourse, referring to the strategic use of legal proceedings to harm, intimidate, or silence an adversary rather than to pursue justice in good faith, most notably brought to public awareness in the multi-year legal pursuit of President Donald Trump.  Currently, the unprecedented plethora of cases against the Trump administration has the public and the Republican House of Representatives crying “lawfare,” instigated in a conscious effort to interfere with the president’s electoral mandate and his constitutional prerogatives.  As this phenomenon becomes more prevalent, a critical question arises: If a judge agrees to hear a case widely recognized as lawfare, does his participation render him complicit in the misuse of the judicial system? 

Lawfare, a term coined by legal scholar Orde Kittrie in his book Lawfare: Law as a Weapon of War, refers to the strategic use of legal systems as a tool of warfare, wielded to advance political, economic, or personal objectives rather than to address genuine legal disputes.  Unlike traditional litigation, lawfare prioritizes tactical advantage over justice, exploiting judicial mechanisms to drain resources, smear reputations, or delay accountability. 

Judges, as gatekeepers of the legal system, wield significant authority to either curb or enable such strategies.  Their decision to hear a case — particularly one with hallmarks of lawfare — carries weighty implications.

The Code of Conduct for United States Judges emphasizes that a judge must “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  When a judge takes up a case that appears designed to weaponize the law, he risks violating this principle.  By providing a platform for lawfare, the judge may inadvertently — or, in some cases, knowingly — lend credibility to an effort that subverts the Judiciary’s purpose.

Complicity, in a legal context, implies involvement in wrongdoing, whether through action or inaction.  A judge who hears a lawfare case might not initiate the abuse, but their willingness to preside over it can make them a participant in its execution.  Legal commentator Alan Dershowitz has argued that “judges are not mere bystanders; they are active players in the administration of justice.  When they allow the courtroom to be used as a stage for political theater or vendettas, they bear responsibility for the consequences.”  Dershowitz’s point underscores the notion that judicial neutrality does not absolve a judge of accountability when they facilitate a process that distorts justice.

Consider a hypothetical scenario: A powerful entity files a baseless lawsuit against a critic, aiming to bankrupt him through legal fees or silence him through intimidation.  If a judge recognizes the case’s lack of merit yet proceeds to hear it — perhaps due to procedural obligations or external pressures — he effectively enables the plaintiff’s strategy.  Law professor Kimberley Motley, who has studied the global rise of lawfare, contends, “Judges have a duty to sniff out bad faith.  Hearing a case that’s clearly a sham doesn’t just waste time — it legitimizes the weaponization of the law.”  By allowing the case to move forward, the judge provides a veneer of legitimacy, amplifying the harm intended.

Judges possess considerable discretion to dismiss frivolous or abusive cases.  In the U.S., for instance, the Federal Rule of Civil Procedure 12(b)(6) allows a judge to dismiss a complaint that fails to state a claim upon which relief can be granted.  Yet some judges hesitate to exercise this power, citing the need to remain impartial or to let the process play out.  This reluctance can prove costly.  As CNN’s legal analyst Elie Honig observes, “judicial passivity in the face of lawfare isn’t neutrality — it’s complicity by default.  A judge who sees the game being played and does nothing is handing the players the rulebook.”

Honig’s critique highlights a key tension: Although judges must avoid prejudging cases, they are not powerless to act against clear abuses.  When a case reeks of lawfare — marked by exaggerated claims, dubious evidence, or a pattern of harassment — a judge’s decision to proceed rather than dismiss can signal tacit approval.  This is particularly troubling in high-profile cases where public perception of the Judiciary is at stake.  Lawfare thrives on the appearance of legitimacy, and a judge’s cooperation provides just that.

Historical examples bolster the argument that judicial participation in questionable cases can equate to complicity.  The U.S. Supreme Court’s ruling in Plessy v. Ferguson (1896), which upheld racial segregation, is often cited as an instance where judges were complicit in perpetuating injustice by lending legal weight to a discriminatory status quo.  Although lawfare differs in intent, the parallel lies in the Judiciary’s role as an enabler.  Today, as lawfare proliferates in contexts like defamation suits against journalists or politically motivated prosecutions, the stakes are similarly high.

Legal scholar Eric Posner has warned of the modern Judiciary’s vulnerability to lawfare, noting, “Courts are not immune to being co-opted.  A judge who entertains a case meant to punish rather than resolve becomes a cog in the machine.”  Posner’s observation suggests that complicity need not stem from malice; it can arise from a failure to recognize or resist the broader scheme.  In an era where legal battles increasingly serve as proxies for political or personal vendettas, judges should be vigilant lest their courtrooms become battlegrounds.

One might argue that a judge’s role is to hear cases impartially, not to police the motives behind them.  After all, determining intent is slippery, and dismissing a case prematurely risks denying a legitimate claim its day in court.  However, this view overlooks the Judiciary’s gatekeeping function.  As Kimberly Motley asserts, “Judges aren’t robots bound by procedure — they’re arbiters of fairness.  If they can’t tell the difference between a real case and a hit job, they’re not doing their job.”  The existence of tools like dismissal for lack of merit or sanctions for frivolous litigation demonstrates that judges are empowered — and expected — to thwart abuses.

Perhaps complicity requires intent, and a judge merely following procedure lacks the requisite mindset.  Yet, Alan Dershowitz counters, “intent isn’t always the issue — impact is.  A judge who keeps a lawfare case alive, knowing its purpose, contributes to the damage whether they mean to or not.”  This perspective aligns with the concept of “complicit bias,” a term gaining traction in legal circles to describe third-party inaction that sustains harm.  A judge’s cooperation, even if procedural, can have substantive effects that align them with the lawfare’s goals.

In conclusion, a judge who cooperates by hearing a case that is unmistakably lawfare may well be complicit in its misuse of the judicial system.  By providing a platform for bad-faith litigation, they risk legitimizing an abuse that erodes public trust and undermines justice.  Current legal commentators like Dershowitz, Motley, Honig, and Posner reinforce this view, emphasizing the judge’s active role in safeguarding the courts from exploitation.  Although judicial impartiality is sacrosanct, it does not demand passivity in the face of clear wrongdoing.  Judges must wield their discretion to reject lawfare, lest they become unwitting — or worse, witting — partners in its execution.  In an age where the law is increasingly wielded as a weapon, the Judiciary’s integrity hinges on their resolve to say no.

And if these judges are complicit, what then are the implications and consequences for them and the reputation of the Judiciary?  We are yet to find out.

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