The Political Weaponization of Overcriminalization Was Entirely Predictable
We dismantled the safeguards the Framers built against political persecution and are now paying the price
Much about our current political era feels unprecedented, especially the sense that the government is targeting people for their political beliefs. In December, President Trump’s Department of Justice ordered the FBI to drastically escalate surveillance of leftist groups. News has also broken that the Biden administration collected data, without a warrant, on Republican senators’ phone calls as part of Jack Smith’s criminal investigation of Jan. 6, taking advantage of inadequate legal protections for data privacy. Republicans and Democrats alike routinely express concern about “lawfare,” the use of unjustified investigations and prosecutions to harass whichever party is out of power.
Americans hoping for a deescalation of lawfare should seek to recover the forgotten legacy of the Constitution’s Framers: the safeguards those patriots who knew what it was to be hunted designed for times like these. The rise and fall of that original criminal legal system can be recounted at every stage of a case—together with ways to revive its promises.
The Scope of Criminal Law
Over the past century, criminal prohibitions have routinely been used to address all sorts of behaviors that used to be left to other kinds of social regulation. It is true that, even at the Founding, some communities closely policed consensual sexual activity, and the tyrannical systems of racial surveillance and control that marked slavery were already developing. But in an age when prisons were a new idea and there were no professional police forces, there were limits to criminal law’s reach.
That changed drastically in the late 19th and early 20th centuries with the rise of Jim Crow laws and the prohibition of alcohol. American governments started trying to use sweeping criminal laws to sanitize society and uproot various perceived cultural ills. Professional police forces started hauling people off to jails for “loitering” and “vagrancy,” while vice squads blurred policing and espionage in their wars against the manufacture, transportation, sale, and consumption of alcohol. The traditionally limited range of criminal law gave way to the enthusiastic embrace of “police powers.”
While modern criminal law no longer prosecutes adult beer drinkers, its growth has continued. An omnipresent criminal law, meant to be flexible enough to punish every social ill, contains thousands upon thousands of offenses found only buried deep within codebooks and regulations, many written so vaguely as to depend almost entirely on the discretion of the prosecutor. That enables lawfare: A government with an axe to grind against a critic can almost readily dream up ways to excuse undotted i’s on President Donald Trump’s mortgage applications while federally prosecuting uncrossed t’s on those filed by New York Attorney General Letitia James and Federal Reserve Governor Lisa Cook. Looking to the criminal law to do far too much means those with the power to wield it can always come up with some charge, however contrived, conceivably covering something done by an opponent. And the current president, who claims victimization by this system, is actively training it on his political opponents in unprecedented ways.
Legal reforms are within sight. The House of Representatives recently passed the bipartisan Count the Crimes to Cut Act, which would direct federal agencies to identify every criminal prohibition they’ve enacted and consider eliminating them. Importantly, these were not laws passed by Congress. Instead, Congress delegates to executive branch agencies carte blanche to pass regulations carrying penalties—thus surrendering the key principle that criminal law should be enacted by the people’s elected representatives. The proposed act would build off an executive order against overcriminalization Trump issued last May.
The proposed Mens Rea Reform Act, meanwhile, would set a baseline intent requirement for crimes—stipulating that unless a law specifically said otherwise, no one could be convicted without at least being reckless toward the law, rather than simply negligent or ignorant through no fault of their own. Americans should also question whether to continue using criminal laws, especially federal ones, to address issues such as drug use. For instance, when Biden’s Justice Department prosecuted his own son Hunter for making false statements about drug addiction and gun ownership, Trump excoriated prosecutors for seeking “a traffic ticket instead of a death sentence.” He recognized the power to selectively punish people afforded to officials by rarely used laws like the one Hunter was convicted of violating.
The Fourth Amendment
Moving from the substance of criminal law to criminal procedure, the limits the Framers placed on investigations have been severely undermined. During the colonial era, British investigative invasions of privacy inspired waves of outrage. Americans were shocked by the English case Entick v. Carrington, where officials searching for pamphlets critical of the government ransacked a publisher’s house, tearing into every container and seizing every document they came across.
On this side of the sea, the British habitually used “general warrants” and “writs of assistance”—expansive legal orders allowing them to rake apart buildings and belongings looking for evidence. Anti-smuggling enforcers abused the rights of shippers, including leading Patriot James Otis. With these abuses fresh in mind, the Framers enacted the Fourth Amendment, strictly limiting warrants and providing that the people would be protected against lawless “searches and seizures.” These terms had plain meanings: to search meant to intentionally uncover hidden information, while to seize meant to restrict someone’s liberty of movement.
These straightforward definitions were corrupted during the 20th century. The trouble began with a well-meaning effort to keep the Fourth Amendment relevant to changing technologies. Faced with the issue of police wiretapping of telephone lines, the Supreme Court held that a “search” should be defined in terms of “reasonable expectations of privacy”: investigators trigger Fourth Amendment protections once they pass too deeply into some matter that most people would deem private. Though this test led the court to limit wiretapping itself, it has proven maddeningly vague and been applied illogically. The court has held that police can rifle through garbage bags people leave in their trashcans for collection. It has also held that because, technically, airspace is open, police can fly a helicopter 400 feet above someone’s backyard and photograph it without intruding upon any reasonable expectations of privacy—prompting Justice Neal Gorsuch to skeptically quip, “Try that one out on your neighbors.”
Ironically, the modern test’s failure to keep up with the times heightens the risk of lawfare. The Supreme Court has yet to say whether the following count as a search or seizure for Fourth Amendment purposes:
Collecting data about every call made to or from a number, as the Biden administration did to Republican members of Congress;
Pulling data identifying every single person who visited a place or attended an event over the course of hours upon hours;
Spying into bedroom windows using cameras on telephone poles;
Following someone’s every public move using military-grade Predator drones, as the Department of Homeland Security recently did at anti-ICE protests—or possibly even Gorgon Stare drones, which can record entire cities from 25,000-feet in the air;
Demanding bank and internet records without notifying the person under investigation;
Telling protest observers: “we have a nice little database and now you’re considered a domestic terrorist. So have fun with that,” as an ICE officer did to a Maine woman; and
Demanding that Google hand over internet records and deploying investigators to the homes of critics, as the DHS did to a Pennsylvania retiree who emailed in support of an Afghan refugee.
At least as far as the public can tell, not all of these measures have been used for lawfare yet. But on December 4, the DOJ ordered the FBI to make an unprecedented list of organizations it considers “domestic terrorists” who are advancing allegedly anti-American agendas, then create a bounty system to reward tips. The Trump administration is also creating a previously unheard-of “reaction force” of National Guard troops to combat “civil unrest.” And it has vowed to “disband and uproot networks, entities, and organizations that promote organized violence, violent intimidation, conspiracies against rights, and other efforts to disrupt the functioning of a democratic society.”
It is hard to imagine any such campaign being executed without the accompanying whir of drone blades, the silent transfer of gigatons of data, and the adding of names to rights-restrictive lists. At the Founding, these measures would have qualified as searches and seizures, subject to constitutional requirements. Recovering those standards in lieu of the flimsy modern approach would go a long way toward protecting Americans of every persuasion from illegal lawfare.
Plea Bargaining
The Framers did not only limit what the government criminalized or how it investigated crimes. They also set strict limits on how people could be convicted. Many of the basic requirements for a conviction remain familiar: the government needed to secure a proper indictment, a defendant was protected against compelled self-incrimination and was guaranteed the ability to be represented by counsel, and a 12-person jury needed to assess the case.
Yet there was a profound difference in how these rules were imposed, as detailed in a new Harvard Law Review article by Emma Kaufman. These requirements were not individual rights that defendants could waive. Instead, they were the legal foundation for criminal courts’ jurisdiction. As Kaufman discusses, this framework shifted in the late 19th and into the 20th centuries. Rather than being seen as the public’s non-negotiable demands for its system of criminal justice, these rules become mere bargaining chips that defendants would trade to the government in exchange for more lenient punishment. Kaufman notes that courts made this shift in favor of plea bargaining in order to accommodate the huge increases in criminal cases during that time period.
This change has led to the virtual extinction of the criminal jury trial, with 94% of state criminal convictions and more than 97% of federal ones resulting from guilty pleas. These outcomes are not the result of genuinely equal and voluntary negotiations. They represent the extraction of individual liberty through extremely unbalanced power. Prosecutors decide the “price” the defendant must pay. If no “deal” emerges, the prosecutor can drastically increase the penalty by adding or enhancing the charges. Information disparities exist, too: defendants who waive their right to discovery of the government’s evidence receive better terms. No wonder respected federal District Court Judge Jed Rakoff reports: “We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty.”
Plea bargaining is a means of conducting lawfare. It lets prosecutors make defendants complicit in the violations of their rights and in their unjustified criminal convictions. Of course, lawfare is possible through trials as well—but plea bargaining lets it take place behind closed doors, hemmed in by fear of government reprisals rather than open to public scrutiny. Restoring the historically understood role of constitutional rules for criminal cases would make them stronger barriers to lawfare.
Recovering Original Protections Against Lawfare
The Constitution’s Framers knew what it was like to be the targets of lawfare. They committed the ultimate political crime, treason against the Crown—but even before that, they knew the oppression of having their homes, ships, and papers scoured through lawlessly by government agents. They designed laws and procedures that they meant to be tyranny-proof.
America abandoned many of those protections during the 20th century, hoping to use drastic criminal laws, rigorous investigations, and mass adjudications to engineer a more orderly society. But the weakened legal foundations that remain are proving vulnerable to the very sort of political manipulation the Framers sought to banish.
As some of these examples illustrate, technicality-driven lawfare can undermine accountability for powerful people who have arguably committed genuine crimes. Instead of pursuing and proving only legitimate charges, prosecutors instead go after process crimes, stretch rarely used statutes, select targets based on biased criteria, and so give the impression of obvious political motives. Such prosecutions don’t bolster accountability, they undermine it by giving the appearance that federal criminal “justice” is a politicized sham. In some cases, senior politicians and officeholders really should face a jury of their peers—but for cases built on substance, not due to a broken system churning out dubious convictions.
The originally designed criminal legal system’s scope and methods may not be able to achieve all that the Republic’s social reformers have always dreamt of—from anti-alcohol crusaders a century ago to drug warriors today. But recovering its protections may help preserve the Republic itself for generations to come.
© The UnPopulist, 2026
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I am not sure Jack Smith's acts qualify as "Biden Administration" acts, he was what is called an independent counsel and didn't answer to Biden, maybe he answered to Garland who was very independent. I am also not sure that gathering numbers called in and out, AKA pen register data, is of questionable legality, didn't Smith v. Maryland put that to rest? This is a separation of powers issue more akin to, but far less objectionable than, Bondi's recording the search history of congressfolk looking at her Epstein files on her computers.