The Situation: Lawfare’s Role During the Second Trump Administration

The Situation on Friday offered some modest advice on how to stay sane during “the screaming.” Today I want to talk about Lawfare’s place amidst the noise.

Let’s start with what we don’t do: We don’t add to the screaming. We don’t scream back. Our fundamental job is to publish material with an unusually high signal-to-noise ratio. 

We also don’t engage in “lawfare”—as that term has come to be used by Donald J. Trump and the people around him, to refer to politically motivated investigation and prosecution of the once and future president. For the record, we used “Lawfare” as the name of this site more than a decade before it became a buzzword for litigation against Trump. 

Indeed, contrary to the belief of a lot of conspiracy theorists and no small number of Trump opponents, Lawfare is not the “resistance.” I don’t make a secret about my views; a lot of other Lawfare writers don’t either, in any number of different directions and on any number of topics. Lawfare publishes strong arguments even (and sometimes especially) when they differ from my own views. But Lawfare’s role resides in supporting sober and serious decision-making on hard policy and legal choices our country faces by providing timely, fact-based information and analysis with academic-depth and magazine-level accessibility to a wide audience of interested stakeholders. Although many of Lawfare’s contributors have, and presumably will, publish analyses that object to Trump’s goals and methods and those of his administration, we will also not shy away from noting when Trump makes sound policy choices within the bounds of the law—as we have always done.

All that said, however, there are certain editorial judgments that guided our coverage during the first Trump administration and will guide us over the next few years as well. The first is the observation that one of the major threats to U.S. national security in the current era is the threat of democratic backsliding, the attraction of authoritarian movements, and the erosion of the norms and independence of institutions on which a free society relies. In other words, baked into our analysis of the national security reasonable policy aims to protect is the assumption of a core U.S. identity as a liberal democracy built on the rule of law. Protecting this democratic identity is, broadly speaking, part of the vision of national security that informs what we write, record, and publish at Lawfare.

Donald Trump’s emergence as a force in American politics continues to rattle long held assumptions about the presidency. From his initial candidacy in 2015 to his re-election to a second term this year, he has posed a number of challenges to the norms of the presidency, the laws of the country, the democratic foundations of the Republic, and the national security interests of the country. 

Lawfare’s role in this era is thus to explore what it means for U.S. national security and law when the executive branch is led by someone who is not merely an iconoclast and a convicted felon, but who has engaged in and supported activities inimical to both the internal security interests of the country and its foreign relations interests in the past. Regardless of how President-elect Trump’s second term unfolds, we remain steadfast in Lawfare’s commitment to independent, nonpartisan analysis, research, and reporting on all issues related to national security, law, and policy. 

Lawfare is a non-profit organization. We are supported by a combination of foundation donations, corporate support, podcast advertising, and individual donations. We do not have a billionaire patron saint on whose whims our editorial decisions depend. And we have no paywall. One hundred percent of our core content is available to the public for free, as a public service. (Only certain bonus content and access to live events we later make available publicly is reserved for our financial supporters.)

Indeed, Lawfare’s greatest value is its capacity as an analytic engine to help readers and listeners distinguish between the unlawful, the lawful, and the policy choices of the administration. Our goal is to inform researchers, practicing lawyers, career officials in government, political appointees, democracy advocates, corporate leaders, journalists, and the general public to help them make better choices. We aim to produce content with the sophistication and attention to technical detail of academic scholarship, but at a pace and in a format better suited to informing legal and policy conversations as well as the views of the broader public.

What will we do during a second Trump administration?

• We will bring experience—experience with the issues, with the law, and with the situation. We have a community of contributors who have been through a Trump administration before and have already thought through many of the issues on the horizon.
• We will continue to cultivate important voices coming out of government. A number of people in the current administration are Lawfare alumni and many Lawfare contributors have previously served in government, under Democratic and Republican presidents alike (including Donald Trump). We will provide these people with a venue to share their important and unique perspectives on the issues we work on.
• We will be following every day’s official actions, both during the transition and in the administration, trying to figure out what’s going on. We will scour official sources to make sure we—and you—know the most important things that your government is doing in the areas within our mandate. 
• We will continue to bring new relevant information and facts to bear. This includes through Freedom of Information Act requests, which we will continue to file and litigate as needed. During the first Trump administration, we got the Justice Department to admit that it had no data to support an assertion that Trump made before a joint session of Congress. We will do this sort of thing again.
• We will continue to monitor the application and evolution of relevant areas of law in the courts. While the prosecutions of Donald Trump may soon wind down, other trials will continue. And we will commit new energy to tracking the array of civil litigation challenging administration actions that seem certain to arise in the years to come.
• And we will continue to be a platform for substantive debate. We will host voices setting forth the best arguments both for and against administration policies—as we have done in the past. This activity does not always endear us to components of our readership, but we think it’s important for readers to understand the full scope of plausible arguments surrounding administration policy. 

Put simply, we will work to cut through the noise and help guide people as to what issues are genuinely of concern and how to understand those issues on a granular level.

Our comparative advantage in this regard is that we run sophisticated and detailed legal analyses that are well-researched, non-partisan and not vitriolic. We are committed to not being alarmist but we also have different views among us about how alarmed to be. We air these differences regularly and respectfully. 

Even as we continue its work on national security and law issues related to the presidency, we will continue to provide coverage of the numerous other issues core to Lawfare's mission. U.S. interests are diverse and complicated and the legitimate national security concerns of the country don’t go away just because the executive branch is posing challenges of its own at home. Our commitment to covering conflicts abroad, international law, international alliances, domestic extremism, artificial intelligence, cybersecurity, disinformation, as well as many other issues will not flag because of a concurrent concern for preserving democratic institutions and processes. To see how Lawfare’s work has an impact across a broad range of topics, check out the October 2024 Impact Assessment. 

All of this costs money. As a 501(c)(3) nonprofit organization, the Lawfare Institute depends on charitable donations to cover those costs. Roughly 30 percent of our annual budget comes from reader support. There is simply no way for us to grow to meet the moment without the support of our readership. 

Lawfare is a small organization that punches way above its weight. That’s because we have reader support from people who actually appreciate what we do. Please consider supporting Lawfare today.

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The Situation continues tomorrow, at which time, I promise, I will not try to separate you from more of your money.