JOSH HAMMER: Trial lawyer lawfare vs. Trump’s policy revolution

President Donald Trump’s second-term agenda is a bold roadmap for American renewal, aggressively implementing conservative ideas to drive economic growth and energy self-sufficiency. It’s squarely focused on delivering for what Trump terms the ‘forgotten Americans’ — the working men and women whose interests have long been ignored by elites from both political parties. This agenda is exactly what Trump ran on last year. Yet today, a group of Democrat trial lawyers are trying to short-circuit Trump on issue after issue — working to achieve through lawfare what they failed to at the ballot box.

Weaponizing the law against political opponents — known as lawfare — is most commonly associated with the actions of the FBI against President Trump during the Obama and Biden years. We now see this playbook being used by activist attorneys to systematically block key elements of the Trump agenda from being enacted – all while collecting big legal fees.

Most recently, lawfare has come for an executive order Trump signed in August that aims to democratize access to alternative assets in 401(k) plans. The EO aims to allow the 90 million-plus everyday Americans who save for retirement through traditional 401(k) plans to invest in assets typically reserved for the wealthy and well-connected – namely, private equity and cryptocurrencies. These investments have regularly outperformed the public stock market and help diversify investors’ portfolios, which many believe are too heavily exposed to the ‘Magnificent 7’ Big Tech stocks. This is why major investors like large state pension funds tend to hold around one-third of their assets in private market investments.

The order directs the Department of Labor (DOL) to reexamine fiduciary duties under the Employee Retirement Income Security Act (ERISA) and propose rules that could include a legal safe harbor for plan sponsors choosing to include high-quality alternative investment options. A few days later, the DOL rescinded Biden-era language that had discouraged such options, opening the door for American savers to these asset classes, which are typically limited to so-called ‘accredited investors,’ with high income and net worth.

Yet trial lawyers are already plotting lawsuits to cancel this reform before it can start, and aim to win a big payday in doing so. As a prominent plaintiffs’ lawyer stated recently to Bloomberg Law: ‘I would joke and say that I hope employers add alternative investments, because I have some kids I need to put through college.’ Indeed, unless the Trump administration insists on strong rulemaking and clear safe harbor in place, these lawyers plan to use the court system to extract multimillion dollar settlements that benefit themselves, while denying average Americans the wealth-building tools that have long been reserved for the elite.

On energy, President Trump made a decisive move with his executive order unleashing American energy, encouraging exploration on federal lands, eliminating burdensome electric vehicle mandates, revoking outdated climate-related directives, and streamlining permitting processes. Yet, environmental trial lawyers have mounted a fierce counteroffensive, using lawfare to hold up these vital changes, resulting in delays that keep energy prices higher, stifle job growth in America’s heartland, and prolong reliance on America’s adversaries for energy resources.  

The pattern continues with Trump’s drive for a smaller, more efficient federal workforce. In March, he signed an executive order to address workforce efficiency, instructing agencies to terminate collective bargaining agreements – some of which were signed in the final days of the Biden Administration to hamstring President Trump. Labor union lawyers have deployed lawfare to preserve the entrenched system and challenge the order in multiple federal courts, securing court stays. Their efforts delay essential efficiencies, perpetuating a bloated federal workforce that drains taxpayer dollars and slows government responsiveness.

This well-coordinated effort shows the threat to Trump’s agenda from those trying using the courts to override the will of the American voter. These trial lawyers, motivated by both ideology and profit, seek to accomplish through the courts what they couldn’t in the 2024 election: Stop Trump at any cost. Our movement’s challenge is to fight back, reclaiming policy-making from the courts and restore it to the people’s representatives.