Never Trumpers Aid Woke Lawfare

Editor’s Note: In the nearly nine years since Donald Trump began his first campaign for the GOP presidential nomination, many prominent former Republicans have abandoned the party in protest. Set against their former allies, these Never Trumpers have been steadily drifting leftward. In wartime, there is not much middle ground. And so, the more radical Never Trumpers (Bill Kristol chief among them) have entered a lockstep march with the progressive left — those who aim to replace the old American order of merit with a system of imposed group outcome equality.

Now, the woke regime hopes to seize the power to achieve that end by twisting the Constitution to deny the former president a place on the ballot — and, failing that, maybe even to throw him into prison. These former conservatives have acquiesced totally to that partisan lawfare. As the cold civil war intensifies, the illusion of any third position is likely to be shattered. Then, as John Fonte writes, these conservative apostates will be clearly seen as “de-facto allies of the enemy” — willing (if not always conscious) participants in “the fundamental transformation of the United States of America,” effective lackeys of the group quota regime.

In 2018, after “nearly forty years” of voting Republican, the self-described “conservative apostate” Tom Nichols called on Americans “to vote against the GOP in every race, at every level.” Bill Kristol, another leading Never Trumper, admitted to the Washington Post in September 2022, “I have not voted for a Republican since Trump became President.”   

Conservative apostates like Kristol and Nichols often speak of the need for comity, civility, and moderation, yet their own treatment of conservatives is dripping with demagogic hatred.  

Charlie Sykes, the editor of Kristol’s online journal, The Bulwark, defames Chris Rufo as a “race-baiting charlatan.” Gabe Schoenfeld, formerly a senior advisor to Mitt Romney and senior editor of Commentary, slanders Victor Davis Hanson’s work as “sophistry in the service of evil.” Bulwark publisher Sarah Longwell smears Ron DeSantis as “a despicable human being,” and insists that “The Good Republicans are gone. Probably for good.” 

Peter Wehner, the head of the Office of Strategic Initiatives in the White House under George W. Bush, told MSNBC in the summer of 2022 that the GOP “is as malicious and malignant a party as I think we’ve seen in the history of our country.” On January 2, Bill Kristol and Jeffrey Tulis wrote that another Republican victory in 2024 “would tilt the federal government radically toward lawlessness, and would seriously, perhaps critically, wound our constitutional democracy.”

This antipathy toward erstwhile allies has even driven the apostates into outright collaboration with the radical left. The Capital Research Center reported that Bill Kristol’s front group, Defending Democracy Together, received $10,050,000 from the Sixteen Thirty Fund, part of Arabella Advisors’ leftist network of “dark money” funders whose activities have even come under criticism from the New York Times and Politico. Julie Kelly in Disloyal Opposition wrote that Kristol’s various projects, including The Bulwark, have been heavily subsidized by the hard-left eBay founder and major Democrat funder Pierre Omidyar. In addition to pouring money into Kristol’s network, Omidyar is a leading funder of radical activists, including organizations involved in the George Floyd riots and those advocating defunding the police and reparations to African Americans “for past and continuing harm.” 

What explains this realignment? It would seem undeniable that the hardline Never Trumpers’ core disagreement with non-apostate conservatives is not simply about policy, but about our constitution and our way of life. They seem to recognize that America is in what might be called a “regime war,” or what the late Claremont scholar Angelo Codevilla called a “cold civil war.”

“Today,” as Schoenfeld puts it, instead of blue and gray, “some wear blue and some wear red. With two irreconcilable visions of what makes America great: Are we heading into the abyss?”

Understanding the War

To understand any war requires a grasp both of the primary causes and of the contending parties’ final aims. Some wars are the result of mistakes and miscalculations; many believe the beginning of the First World War in August 1914 would be such an example. On the other hand, there is little dispute that the start of the Second World War on September 1, 1939 was the result of deliberate aggression by Nazi Germany seeking conquest.

Likewise, this war is the result of aggression by the progressive left, driven by the ideology of wokeness. We are all familiar with its building blocks: the obsession with race, ethnicity, and gender; an idiosyncratic understanding of “equity;” the supposed moral dichotomy between the “oppressors” and the “oppressed.” We understand its power in our culture, our politics, our schools, foundations, media, major corporations, federal and state bureaucracies, intelligence agencies, and in America’s oldest political party. It existed before Donald Trump’s entry into American political life, and it will continue after he departs the scene. 

It is merely the latest in a long series of ideological mutations, labeled pejoratively, complimentary, or neutrally (depending on the view of the observer): multiculturalism, political correctness, cultural Marxism, cancel culture, social justice, equity, progressivism, identity politics, and the successor ideology. Let us not feign confusion. We all recognize the phenomenon whatever name one chooses to use.

Wokeism repudiates the historic American nation. To the woke, America is racist, sexist, homophobic, transphobic, xenophobic, and institutionally oppressive; it has been since 1619. And so the end goal of the progressive project is, in the words of President Barack Obama, “the fundamental transformation of the United States of America.”

This side of the conflict could then be accurately described as “Transformationists,” while their adversaries — who affirm historic America, its principles, and the common sense norms of civilization — can rightly be labeled as “Americanists.” The goals of the Transformationists are radical, not reformist; they call for revolutionary change in all aspects of American life. The core war aims of the Americanists, meanwhile, are the improvement, perpetuation, and transmission of the American way of life to future generations. 

Americanists have traditionally operated as conservatives, interested in strengthening legacy institutions. However, as revolutionary progressivism has succeeded in capturing major sectors of American life in politics, government, education, business, and culture, Americanists will (in many cases) need to adopt a counter-revolutionary strategy if they hope to win. 

Conservative apostates like Nichols, Kristol, and Schoenfeld downplay the revolutionary nature of the war being waged against the historic American nation, touting racial, ethnic, and gender based “equity” over traditional equality of citizenship and the defense of natural rights.  

Yet even Schoenfeld admits: “There is indeed a censorious cultural movement afoot that has spread widely, committing outrages along the way,” though he claims that “these outrages are overwhelmingly the handiwork of private actors, not overreaching government.” Not to worry, Schoenfeld tells us: “The fact of the matter is that in whatever direction one looks, the left-wing progressive agenda is in retreat.”

Schoenfeld is wrong on both counts.

First, the progressive revolution has established a powerful and coercive presence in both government and the private sector. A perfect example is the congressional investigation of the “Twitter Files,” which revealed that the FBI pressured Big Tech to suppress legitimate news stories on Covid and Hunter Biden’s laptop that were politically harmful to the Biden White House and the progressive narrative. Clearly, the federal government was the dominant power and the private sector the subordinate actor in those actions, even if the actual censorship was done by a nominally private entity.

Secondly, woke progressivism is hardly “in retreat,” despite some welcome pushback. The military, the intelligence agencies, the State Department, the Department of Transportation, and the entire federal bureaucracy continue day after day to promote a “whole of government” approach to DEI (Diversity, Equity, and Inclusion). The most powerful man in the world uses the bully pulpit to babble on about “white supremacy” and four hundred years of “systemic racism.” Critical Race Theory continues to be taught at West Point, Annapolis, and the Air Force Academy. The resignation of Claudine Gay has not changed Harvard’s woke policies. Leading universities are still preparing to evade the Supreme Court ruling outlawing racial preference in admissions. Male convicts who identify as transgender continue to be housed in women’s prisons, and male athletes continue to break records in women’s sports.

Gabe Schoenfeld, as a typical conservative defector, downplays the radicalism of these challenges, including the anti-liberal, anti-democratic nature of the woke progressive project. He also ignores the extent to which this project represents a revolutionary rejection of America’s constitutional order.

The Primary Weapon of Lawfare 

If firepower is a primary instrument of hot war, then lawfare is a core element of the cold civil war. Lawfare is the opposite of the rule of law: the misuse of the legal system to destroy, damage, or weaken a political adversary. It is an act of aggression that ignores legal norms and precedents. It disavows the concept of loyal opposition and turns political opponents into enemies. 

Progressives are aggressively waging lawfare to crush political resistance to their transformationist agenda. Federal, state, and local governments are bringing frivolous criminal charges in an attempt to jail the leading presidential candidate of the opposition. Failing that, they aim to remove him from the ballot. This is unprecedented in American political history, and more reminiscent of third world “banana republics” than the world’s oldest constitutional democracy.

Here, too, the Never Trump conservative apostates have become willing allies of the woke regime.

In a cogent essay, a leading conservative scholar and former high ranking State Department official, Peter Berkowitz, examines why about half the country believes elite legal progressives “have weaponized federal law enforcement.” He notes that “four criminal indictments [were] brought against Trump−all between April 4 and August 10, 2023, more than two years after he left office and just as the 2024 campaign ramped up….” In other words (as the Marxists used to say) it was no coincidence. 

Berkowitz characterizes as “reckless” the Colorado Supreme Court decision to remove Trump from the ballot on the grounds that he violated the 14th Amendment’s prohibition on those who “engaged in insurrection.” He points out that Trump has never been charged (let alone convicted) of insurrection. 

Berkowitz excoriates neoconservative Robert Kagan’s argument that “the threat Trump poses to freedom and democracy in America justifies abusing the law to banish him from the political arena.” In this sense, Berkowitz notes, ”anti-Trumpers thereby facilitate the unraveling of the rule of law that they seek to avert.” 

Gabe Schoenfeld and fellow apostate Ron Radosh devote an entire essay to rebutting Berkowitz’s argument. They defend the efforts by the Colorado Supreme Court and the Maine Secretary of State to disqualify Donald Trump from running for president as “the working out of the rule of law.” Further, Schoenfeld and Radosh laud Kagan’s endorsement (he “deserves high praise”) of “taking every conceivable measure” to stop Trump.

What better language than “every conceivable measure” to describe the logic of war?

Indeed, Kagan analogizes the imperative to stop Trump’s quest for a second term in the White House to resisting an armed house invasion: “When a marauder is crashing through your house, you throw everything you can at him−pots, pans, candlesticks−in the hope of slowing him down and tripping him up.”

Not surprisingly, other conservative apostates embrace the use of lawfare to keep Trump off the ballot. The Bulwark’s Charlie Sykes told MSNBC’s Mika Brezinski: “I’m very, very sympathetic to the argument that the 14th Amendment disqualifies Donald Trump.” He only worried about “how it’s going to play out politically.” He recommended emphasizing the “rule of law” rather than democracy — i.e., it is best to avoid the popular argument that the decision should be made at the ballot box and not in the courts.

Kristol himself wrote on Twitter (now X) that he had read the Colorado Supreme Court decision and found the majority and dissenters judged the case “honestly and conscientiously.” He remarked, “If only conservative elites were as upset about Trump having tried to stage a coup against the Constitution, as they are about Colorado Supreme Court justices conscientiously interpreting the Constitution in a lawsuit properly brought before them in response to that coup attempt.”

Meanwhile, every day, the cold civil war intensifies and the woke revolutionary project advances. In the past few weeks, the House Judiciary Committee revealed that the federal government, including the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) and the FBI, had asked banks to examine customer transactions for possible “extremist” activity. Suspicious transactions included the use of terms such as Trump, MAGA, Dick’s Sporting Goods, and Bass Pro Shops. Problematic activities would include the buying of hunting rifles, and, specifically listed, “the purchase of books (including religious texts)” — presumably including Bibles.

Faced with such blatant attacks on the American way of life, so many disaffected and former Republicans choose either to join the enemy or to step aside with a “plague on both your houses” stance that, in the final analysis, makes them de-facto allies of the enemy — that, at the very least, objectively advances what the woke warned us they sought: the fundamental transformation of the United States of America.

John Fonte is a senior fellow at the Hudson Institute.