Are there certain words lawyers should not use as they respond to accusations that a client engaged in criminal conduct? And as we teach advocacy skills to lawyers-to-be, should we be teaching about the pernicious nature of some words in the common discourse and say “you can be better than that.” My vote is for “weaponize” and its variations as front and center in that category.
The concepts of “weaponized justice” and “weaponized prosecutions” now permeate our discourse. The damage is likely incalculable, one of the many reasons lawyers (and, of course, politicians) should reject their use.
In just the past two weeks it has loomed large in the public discourse, particularly when someone claims they are wrongly charged or prosecuted or when a policy is challenged. Consider these instances:
- When a Tennessee state legislator—himself a lawyer who fully admitted his guilt to campaign finance law violations—was pardoned by Donald Trump he proclaimed on social media that “May God bless America, despite the prosecutorial sins it committed against me, President Trump, and others the past four years” and went on to say that “God used Donald Trump to save me from the weaponized Biden DOJ …”
- In his recent speech at the Department of Justice, virtually the first words out of Trump’s mouth were “We’re turning the page on four long years of corruption, weaponization and surrender to violent criminals.” He added that “Unfortunately, in recent years, a corrupt group of hacks and radicals within the ranks of the American government obliterated the trust and goodwill built up over generations. They weaponized the vast powers of our intelligence and law enforcement agencies to try and thwart the will of the American people.”
These are not isolated statements:
- When Trump pardoned convicted politician Rod Blagojevich, the former governor invoked the term. “What I am seeking is justice and for the truth of the corrupt prosecution against me to be exposed. If we are going to save our democracy, lawfare and the weaponization of prosecutors for political purposes must end and those who engage in it must be brought to account.”
- In describing the prosecution of New York Mayor Eric Adams, then acting-Deputy Attorney General Emil Bove referred to “the weaponization of this prosecution …”
- Rep. Andy Biggs, lauding the inauguration of Trump, decried “Corrupt AG Merrick Garland weaponized the Justice Department against its citizens—countless peaceful, pro-life advocates and concerned parents at school board meetings were targeted by the weaponized DOJ while bad actors were not held to account.”
It is not merely in news accounts that we find this proliferation and increasing use of the term. A LexisNexis search showed the term’s use increasing almost geometrically over the past several decades. Using the search parameters “weaponize! and [date],” we see the following:
- Before 1980, zero use in decisional law
- 1980-1999, one case
- 1999-2015, 47 cases
- Jan. 1, 2015-Jan. 5, 2021, 302 cases
- Jan. 16, 2021-March 19, 2025, 947 cases
The rise in use is matched only by the ambiguity of the word. Is a weaponized prosecution one where the defendant is truly innocent, a frame? Is it charging someone with inadequate proof in hopes a jury will convict? Is it an initially valid prosecution, but one where guilt is proved by deception and withholding of exculpatory evidence? Is it selective, targeting one group that breaks the law while protecting a different population? Is it “yeah, this might be a crime but you the prosecutor—should be concentrating on different offenses and not wasting your time here.” No one who uses the term clarifies—but the label is there.
Consider the Tennessee legislator. His crimes—acts he specifically admitted to—were described as follows:
Per Kelsey’s plea agreement, at a high level, Kelsey, who at the relevant time was a Tennessee state senator running for a seat in the U.S. House of Representatives, conspired with several individuals to move money from his state senate campaign committee through various political action committees for the benefit of Kelsey’s federal campaign committee.
See United States v. Kelsey, 2024 U.S. App. LEXIS 16847, *2. Which “weaponized” is this? [It certainly can’t be targeting only Republicans—the Biden DOJ prosecuted Democrats for corruption regularly. Just think Sen. Robert Menendez.] Kelsey never explains, the news media never ask, and the public—at least some portion of it—says “yeah, another improper prosecution—the system and the courts are corrupt.”
There may be some instances where the weaponized claim is appropriate—but that is when it applies to the conduct of a party. See, e,g, Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)(“by denying Gray his needed medications, the county ‘weaponized’ a mentally ill man and ‘unleashed’ him on the public, proximately causing Moore’s death); Hatfill v. Foster, 401 F. Supp. 2d 320, 331 (SDNY 2005)(“the anthrax used was extremely fine grade and described at one point as weapons grade and at another as ‘weaponized’”).
So where does this leave us, especially in a world with the command that “a lawyer must act … with zeal in advocacy upon the client’s behalf?” Unless in the context of a selective prosecution claim, which itself is not a jury issue, using the epithet that a case is a “weaponized” prosecution can only engender emotions, push toward the goal of jury nullification, and infect a process with a word that is a “dog whistle.” That is not zealous advocacy—that is an appeal to ignore the facts and the law.
In the classroom, the word should be taught as one to be avoided; and the persistence of its use by politicians and others may warrant a training on how to voir dire prospective jurors to ensure that none views the criminal justice as weaponized. And once a person has that J.D. degree, the word should be retired. Let’s get back to the rule of law, not labels.
Reprinted with permission from the March 28, 2025 edition of the LEGAL INTELLIGENCER © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.