The Jack Smith Operation Shows Lawfare Will Only Get Worse

Lawfare grows more dangerous with every operation. This week’s disclosures about Jack Smith’s operation show how far that machinery reached.

We already knew about Smith’s sweeping indictments of President Trump on flimsy charges and many of the operation’s other abuses, including the secret seizure of phone records from Republican lawmakers, the review of text messages involving 44 members of Congress, and subpoenas seeking records on at least 430 Republican individuals and entities. This week, we also found out that Smith’s team of lawfare operators spied on nearly 50 journalists, including Mollie Hemingway of The Federalist.

They seized copies of 4,782 checks written by Americans who donated to Trump and Republican groups, exposing donors’ names, home addresses, bank and routing numbers, and signatures. These were ordinary Americans dragged into the lawfare simply because they wrote a check to support a political candidate. Smith also swept up records of people who had run pro-Trump ads. The sheer extent of the intrusions and abuses is incredible. 

We can get furious about each round of revelations, with every new disclosure producing another round of outrage. But the real lesson, and the far more frightening reality we have to grapple with, is that lawfare keeps getting more sophisticated and more vicious.

In many ways, this progression began in crude form in 2004, when 60 Minutes aired a false story about President George W. Bush’s service in the Texas Air National Guard. The broadcast relied on documents claiming Bush had received favorable treatment and failed to meet his obligations. Lawyer Harry MacDougald, a through-line in fighting lawfare over the years, exposed those documents as forgeries. Dan Rather, who ran the story, was ultimately forced to resign.

Perhaps not coincidentally, MacDougald now represents Jeff Clark, the former Trump administration assistant attorney general who became a prominent victim of the far more developed lawfare system that followed. Clark was targeted by the Jack Smith operation and by the ongoing campaign to strip him of his law license. And MacDougald himself has been pulled into the same machinery, with an ethics complaint targeting him over his legal work in election-related cases.

The 2004 operation was a political hoax, but it was not quite lawfare. It had some of lawfare’s common elements: fabricated evidence, a hoax laundered through a major media outlet that actively carried the attack, and the political objective of defeating its target (Bush). But the operation was crude, and its defining weapon was missing. The state’s investigative and prosecutorial power had not been turned against Bush or his associates to surveil them, prosecute them, bankrupt them, or imprison them.

By 2016, the method had become far more sophisticated. Russiagate became the origin of what we now know as lawfare. It began with a fabricated narrative, then built an entire operational ecosystem around it. Instead of simply laundering a false story through one 60 Minutes broadcast, the story was laundered through Christopher Steele, who received it from a firm hired by the Clinton campaign and repackaged it as a quasi-British intelligence product. Additionally, a made-up story about Trump communicating with Russia through Russia’s Alfa Bank was laundered through a team of purported computer scientists to give it a veneer of credibility. Those false narratives were then released through a whole network of media lawfare collaborators.

Most importantly, for the first time, the operation brought the legal and law enforcement machinery to bear. With the help of FBI Director James Comey and CIA Director John Brennan, the fabricated narrative became a federal operation, using investigations, surveillance warrants, leaks, and a special counsel to try first to defeat candidate Trump and, when that failed, to remove him from office. The operation targeted not just Trump, but the people around him. Campaign figures, advisers, associates, and people with only loose connections to Trump were dragged into the investigation. They faced legal bills, public smears, professional ruin, bankruptcy, and, in some cases, prison. The purpose was to isolate Trump, cripple his ability to govern, and make anyone who stood with him pay a price. It largely succeeded.

Russiagate brought the elements of lawfare together in one coordinated campaign. But it was only a precursor to the next evolution, which we are seeing more and more clearly with Jack Smith. He took the 2016 playbook and multiplied its viciousness, reach, and breadth until Russiagate looked like kindergarten. His operation pursued Trump through criminal cases while drawing in lawyers, lawmakers, journalists, conservative political organizations, and thousands of ordinary Americans whose only connection was making perfectly legal political donations, many for tiny amounts.

This should make everyone stop and confront what is happening. In 20 years, we went from a forged document aired on television to a federal operation targeting conservative journalists and random Americans. The target list keeps growing, the abuses keep expanding, and the people responsible keep acting as if the next escalation will never be challenged.

The point must be unmistakably understood: they will try again. The next operation will be more sophisticated, more sweeping, and more ruthless. It will borrow every method used before and build new ones around them. Much time has already been wasted in the second Trump term, leaving only a narrow window to prepare for what might come after the 2026 midterms or in 2029.

While the lawfare machinery has occupied the field largely unopposed and grown ever more sophisticated, conservatives have yet to build the institutions, infrastructure, strategic framework, and legal capacity needed to expose and counter lawfare before it destroys more lives and institutions. Case by case, defendant by defendant, the machinery will keep winning. It has to be confronted as a system.

But even that would not substitute for what is most needed and most absent: accountability. To this day, no one other than Kevin Clinesmith, an FBI lawyer who forged a document in the effort to target Trump, has been held to account. He got off with a slap on the wrist. The operators, including Comey, Brennan, and Smith, got off scot-free. And unlike in 2004, when his participation in the hoax cost Dan Rather his job, the media participants in lawfare have faced no accountability either.

All of this has to change, or lawfare will only get worse.