Who Started the Lawfare Era?
A new motion in an international court dispute draws in a wide range of political luminaries, from Canada's new Prime Minister to the head of Donald Trump's new "Weaponization Working Group"
This week, the storied Boies Schiller law firm filed a motion alleging widespread wrongdoing on the part of Brookfield Asset Management, a private equity titan chaired by Canada’s new Prime Minister Mark Carney until a few months ago. The motion also named former deputy to Robert Mueller and federal prosecutor Andrew Weissmann, a longtime foe of Donald Trump’s and a target of the new “Weaponization Working Group” in Trump’s Justice Department.
Technically, this is just a business litigation about a privatized toll road in Peru. It’s become more than that. The case is now a key proxy conflict in the increasingly heated “lawfare” arena in which courts, police, and prosecutors are turned into political weaponry.
Prior to 2025, status quo figures openly praised lawfare tactics and embraced everything from politicized prosecutions to ballot-blocking campaigns on the grounds that extreme measures may be needed to “save democracy” from the likes of Trump. Lawfare in the context of Trump became a celebrated word, connoting “hard national security choices” an enlightened institutional vanguard might need to make to save us. When Trump failed to win re-election in 2020, “lawfare” was widely credited with saving the Republic:
In power, Trump has shifted his narrative on lawfare. On the campaign trail in the last two years, as he posed involuntarily for police sketches in his New York fraud trial and railed against what he called the “new legal system” of “weaponization,” he promised voters, “I am your retribution.” The theme was central to his run. In July of 2024, Trump operatives in Milwaukee held discussions that resulted in making a promise to “end the weaponization of government against the American people” a main element of his 15-page platform. They also loosely discussed what “ending weaponization” might look like in practice. One concept was nominating early interim officials who’d turn lawfare on its original practitioners, “wreak havoc,” and “piss off so many people they’d be unconfirmable,” before making way for nominees the Senate could countenance.
Months into Trump’s second term, it’s clear the mostly defensive approach his first administration employed has given way to a broad plan of attack encompassing large swaths of institutional America, from universities to the federal budget to the press to law firms (the Pentagon and the intelligence sector have been conspicuous exceptions). This has resulted in sharp condemnations not just from the press but politicians from both parties, with Republican Thom Tillis refusing to support the nomination of one of Trump’s most aggressive early appointees, interim U.S. Attorney in the District of Columbia Ed Martin, because of “concerns related to January 6th,” which Martin attended.
As soon as Martin was out as U.S. Attorney, he moved to a new office as the administration’s Pardon Attorney, also in charge of a “Weaponization Working Group” in the Justice Department, but upon arrival found himself under investigation by the District of Columbia’s Office of Disciplinary Counsel for alleged abuse of prosecutorial powers.
How one feels about any of this likely begins with how one views various cases and investigations. Were the 1,500 people imprisoned after January 6th terrorists, or political casualties? Was the movement to use the Insurrection Act to keep Trump off the ballot legitimate, or abusive? How about jailing people like Steve Bannon and Peter Navarro on contempt of Congress charges for the first time since the McCarthy era? Would the 100-plus criminal counts against Trump have been filed against anyone, or were they political (or are both partly true)? Was there nothing untoward in the role major law firms played in Russiagate, or did such episodes show the dangers of keeping private corporate defense firms and intelligence/law enforcement so intertwined? Is that ODC case against Martin just good regulation, or is it itself lawfare and retaliation?
If you don’t think any of those pre-2025 actions were lawfare, you’ll clearly object to the current administration’s high-handed tactics. If like me you had hopes this presidency might somehow break the cycle, you’re likely also unnerved.
Months into the new presidency, however, it’s clear officials in a White House led by a man who’d likely be in jail if he didn’t just win an election feel they’re still at war. “We didn’t make these rules, they did,” is how one voice close to the administration put it.
If politics has transformed into a ruleless rock fight, the development likely pre-dated Trump. Even though it’s now clearly part of the Trump/anti-Trump battle, the Peruvian toll road case that escalated this week started off as an early window into the chicken-egg conundrum of the lawfare era. If a whole system is crooked, to what extremes may an institutionally outmanned player, like a South American city, resort to in fighting back?
U.S. District Judge Ana Reyes, like Justice Boasberg in the Facebook case, has recently become famous, in her case for for blocking Trump’s transgender military service ban. Two years ago, on December 6, 2023, she settled in for a hearing between the city of Lima, Peru and a toll road concession (“Rutas de Lima”) backed by one of the world’s largest private equity firms, the aforementioned Brookfield Asset Management. The Peruvians felt they’d been conned by Western finance conquistadors who bribed their way to an exploitative, obscenely overpriced toll deal, which they wanted vacated.
The Lima mess, as reported here, has roots in a scandal involving the Brazilian construction conglomerate Odebrecht. Like its similarly gigantoid American counterpart Halliburton, the firm was caught in a vast bribery scandal, forced to pay a $3.5 billion fine after handing out $788 million to officials around the world to win contracts. The toll deal was initially struck between Odebrecht and then-Mayor Susana Villarian (eventually sentenced to 29 years for her Odebrecht ties) in 2013, but once Odebrecht executives began getting arrested in 2015, the Canadian finance giant Brookfield snapped up a controlling stake for the discount price of $430 million (the firm would eventually place an internal valuation of the stake at $3 billion). The road connected dirt-poor Pueblos Jóvenes villages with the city center. When residents in a country with an average monthly salary of about $250 saw they’d be paying roughly $3 a day just to get to and from their homes, a period of furious protests and demonstrations commenced.
Meanwhile the Metropolitan Municipality of Lima (MML) appealed to international authorities to vacate the deal. Those efforts failed, so in 2023 Peruvian officials took an unprecedented step, filing criminal charges against the arbitrators involved, a version of nationalist lawfare all its own. No American judge was in anyone’s crosshairs yet, but at the time, just-broken news stories made it sound possible, and Reyes was peeved.
“All right,” she said at the start of the hearing, addressing Lima’s then-lawyers from the Boston-based firm, Foley Hoag. “Tell me that the article I read yesterday is mistaken… Tell me that was a gross misunderstanding and fake news.” Later, to the same lawyers: “I’m traveling internationally in February. Do I have to worry about a Red Notice being put out for my arrest?”
The Foley Hoag lawyers reassured her that no, she was safe to travel. Months later, the lawyers again felt her displeasure. Judge Reyes had at times complained about Lima’s representatives, scolding one for his seeming unfamiliarity with his own evidence and in another instance failing to understand why a witness to alleged bribery had not been made available. After more perceived stumbles, Reyes on March 18 of last year delivered a major rebuke.
Saying, “I have never experienced anything like this in all of my years of litigation” and that she had “never been up against counsel that’s acted this way,” she tore into the lawyers for the Municipality of Lima:
For a long time I thought maybe they just have a difficult client, or this is an important case and there’s a lot of ups and downs or whatever. Now I just think you all might be bad lawyers. Like that’s where we are. Because I don’t understand what else explains this… I do not understand how you all keep doing what you’ve been doing time and time and time again… I am literally — I just don’t understand it, because I know you’re not bad lawyers because you wouldn’t be where you are, at the firm where you are, handling this case if you were bad lawyers.
You’re either bad lawyers or I don’t know what, but I know you’re not bad lawyers is not something one hears from the mouth of a federal judge every day. What the ethical problem might have been was unclear at the time. This week, a possible explanation emerged, as the new lawyers for the Metropolitan Municipality of Lima, Boies Schiller, filed a motion claiming an extraordinary conflict:
For years, MML relied on Foley Hoag LLP (“Foley”) to protect its interests in high-stakes arbitrations and annulment proceedings against Rutas de Lima S.A.C. (“Rutas”) over a major toll road concession in Lima, Peru (“Concession Contract”). Yet unbeknownst to MML—until after suffering multiple losses in arbitration and before this Court—at the very same time Foley represented MML in those disputes, Foley also represented affiliates of Brookfield Asset Management Inc.—the parent company of Brookfield Infrastructure Partners, the majority stakeholder in Rutas (together, “Brookfield”).
Recapping: the Lima road was built as a result of an agreement between an admitted payoff-taking imprisoned ex-mayor and her benefactor, Odebrecht, a conglomerate that will be remembered as the General Motors of Bribery. Shortly after Odebrecht’s CEO was jailed in 2016, Jenner Block client Brookfield made an extraordinary bet on a recent Odebrecht project, not knowing if it would be subject to sanctions. Soon after that, in December of 2016, the Department of Justice negotiated Odebrecht’s $3.5 billion plea deal, noting that it paid $1.4 million to a “high-level official in the Peruvian government” while bidding on a “government transportation contract” that was “valued at approximately $400 million.” The U.S. declined to be any more specific, however, clearing the way for Brookfield to commence the cheery process of collecting tolls from Peruvians in rags.
The American official who signed the deal was Weissmann, then chief of the fraud division, who was one of Trump’s chief pursuers as Robert Mueller’s deputy. As Martin charged in a letter that was reported here in March, Weissmann had been a partner at the firm representing Brookfield when he signed the deal, a potential conflict of the type specifically warned against by the Biden Justice Department in a 2022 memorandum by Weissmann’s former co-worker, Lisa Monaco.
The Peruvians see this as all of a piece, part of a rigged game.
“The people of Lima have paid the price for a concession contract procured through bribery,” says Lima’s current Mayor, conservative Rafael López Aliaga. “It seems now that when Andrew Weissmann, a former partner of Brookfield’s law firm, resolved DOJ’s case against Odebrecht, no victims were acknowledged. In the case of Rutas de Lima, we’ve seen the consequences firsthand: Brookfield picked up a contract they themselves value at $3 billion for just $400 million risk free, while the people of Lima were left to bear the cost.”
When contacted, Brookfield sent a statement from former Florida Republican congressman Connie Mack IV, an advisor to the firm. “Mayor Lopez Aliaga’s latest legal gambit is a desperate attempt to distract from his mounting losses and the millions he has wasted of the people’s money in this case,” said Mack. “It’s time for Lopez Aliaga to get serious.” The new liberal Prime Minister of Canada, Mark Carney, was chairman of Brookfield during the period in question. Carney’s office declined to comment. Weissmann and Jenner Block also so declined.
Lima’s longshot effort to overturn the malodorous toll road deal reminds me of so many carefully negotiated screwings from the pre-Trump era: the “landmark $25 billion agreement” to help America’s five biggest mortgage servicers escape liability for a generation of robosigned (read: forged) documents, the “record” $13 billion mortgage fraud settlement for JP Morgan Chase that was really $9 billion (and really less than that), the preposterous $335 million settlement for the Pablo Escobars of subprime, Countrywide, the probation deals for Gen Re executives who likely cost shareholders more than the combined take of all bank robberies ever, and many others.
Some of these arrangements were back-of-napkin deals brokered by law firms over-empowered to help clients “self-regulate,” or advantageous settlements devised by regulators minutes from lucrative returns to private partnerships. Public frustration at the inability to crack these clubby arrangements is a big reason politics have become so radicalized.
I’m not in favor of either party using courts as weapons to take down opponents, but to me this case is a reminder that long before Trump, ordinary people — in subprime-ravaged exurbs here or in South American shantytowns — were the first victims of lawfare.
I think the biggest reason I appreciate Taibbi other than his investigative journalism, is he is capable of remembering inconvenient things. Turns out American political history did not start in 2016.
I think it's pretty obvious that the little people have been crushed by the state since......well, basically forever. What changed (IMO) was when Trump was elected in 2016 and the Swamp was actually worried about losing power. Crossfire Hurricane is the perfect example of lawfare against the powerful, and that obviously continued all throughout Trump's first term -- to the point where he ordered the Crossfire Hurricane files unredacted and the Swamp simply refused.
That election, along with Brexit around the same time, REALLY spurred the lawfare "#Resistance" warriors into action. Anything that threatened the WEF/Globalist order was deemed a threat and attacked with the full force of governments around the world. (This is why we see so many "hate speech" laws being drafted and implemented around the globe.) Now they've established those baseline rules and are ramping up into banning candidates or parties, or simply ignoring the results of elections they don't like.
I HOPE all of this is on the downswing because it SEEMS like people across the world are rejecting rule-by-elites. But the Swamp isn't going to give up without exhausting every legal (and not so legal) avenue at their disposal.