Lawfare or Justice? Understanding American Prosecution—Six-Part Series

Over the past several years, lawfare has become a prominent term in discussions about the American criminal justice system. A play on words combining warfare and law, the concept originally described the strategic use of legal action in place of military force to achieve a specific objective—whether for legitimate or illegitimate purposes. In contemporary political discourse, however, the term is often used more pointedly to allege that the law is being wielded unjustly against an adversary. Some view today’s high-profile prosecutions as long-overdue accountability, while others see them as precisely that kind of weaponization. The term is now used across the political spectrum to characterize cases that opposing sides interpret in fundamentally different ways. That divide reflects a growing concern about the independence and neutrality of the justice system. Polling under both Democratic and Republican administrations has found majorities believing the Department of Justice’s actions have been influenced more by politics than by the impartial administration of justice.

Determining whether a particular prosecution constitutes lawfare is rarely straightforward. Every case presents its own facts, legal issues, and procedural history. Yet the same institutional framework governs each of them. To fully evaluate questions about prosecutorial discretion, political influence, fairness, and accountability, one must first understand how the American criminal justice system is designed to operate.

This upcoming six-part series examines the institutions that shape prosecutorial decisions rather than the individual cases that often dominate public debate. It will explore the structural features of the American criminal justice system, the historical reasons they were adopted, and the competing interests they were designed to balance. Understanding those institutional choices does not determine whether any prosecution is an example of lawfare. However, it does provide the foundation necessary to evaluate such claims with a clearer sense of how the legal system functions and why it often produces outcomes that reasonable people interpret differently. This upcoming series will offer the context necessary to evaluate not only today’s most controversial prosecutions but those that will inevitably follow.

Part 1—Where Did America’s System of Prosecution Come From?
Part 2—Who Has the Power to Prosecute?
Part 3—How Are Criminal Cases Charged and Resolved?
Part 4—Who Holds Prosecutors Accountable?
Part 5—How Does Prosecutorial Discretion Operate Within the Rule of Law?
Part 6—Conclusion: When Does Prosecution Become Lawfare?