The word lawfare has done two different jobs in twenty-five years. In 2001, Colonel Charles J. Dunlap Jr. of the U.S. Air Force used it at Harvard’s Carr Center to describe the use of law as a weapon of war — a strategic concept for international and military lawyers. In 2026, the same word is in heavy domestic use, applied to litigation tactics that impose costs, delay outcomes, target adversaries’ personal networks, or destroy a defendant before the merits are reached. Both meanings travel under one label, and the label has been used loosely enough to obscure what it is supposed to clarify. The question this post asks is narrower and more useful: does the word have a stable definition you can apply to a specific record, and what does that test return when you apply it to SEC v. Barton?
What “Lawfare” Means — A Term With Two Histories
The originating definition is Dunlap’s. In his November 2001 Carr Center paper — written less than three months after the September 11 attacks — Dunlap described lawfare as the use, or misuse, of law as a substitute for traditional military means to accomplish an operational objective. He refined the formulation across several pieces over the next decade, culminating in his Lawfare Today … and Tomorrow essay in the U.S. Naval War College’s International Law Studies in 2011. Dunlap joined the Duke Law faculty in 2010; the scholarly center of gravity for the term moved with him.
In the years that followed, two other developments expanded the word’s reach. First, Orde F. Kittrie’s Lawfare: Law as a Weapon of War (Oxford University Press, 2016) gave the term its standard academic synthesis — not only as a military tactic but as a tool of statecraft, used by states, non-state actors, and private parties. Second, in September 2010, Benjamin Wittes, Jack Goldsmith, and Robert Chesney founded the Lawfare blog (now Lawfare Media), which extended the term into a much broader national-security legal-policy register.
The domestic-litigation usage that dominates today’s discourse is a third layer, applied loosely to describe the practice of using lawful litigation, prosecution, or regulatory enforcement tactically — to impose costs, to delay outcomes, to target adversaries’ personal networks, or to destroy rather than to resolve a discrete legal dispute on its merits. That usage has no single scholarly anchor and is contested. Both major political coalitions in the United States now use the word to describe what they perceive as weaponized litigation by the other side. The term is doing real work; what it describes, and whether the description fits a given case, requires definition.
“Lawfare is the strategy of using — or misusing — law as a substitute for traditional military means to achieve an operational objective.”
— Major General Charles J. Dunlap Jr., USAF (Ret.), Duke Law
The Legal Lines Lawfare Can Cross — Is It Illegal?
Lawfare is not itself a legal category. It is a descriptive label — applied retrospectively to a pattern of legal tactics, not to a defined offense. The honest doctrinal answer to the question “is lawfare illegal?” is that most of what gets the label stays in the gray zone, where it is technically permitted. That is what makes it effective.
That said, the specific tactics that constitute lawfare can cross several legal lines. The most important doctrinal hooks are:
Malicious prosecution. For criminal proceedings brought without probable cause and for an improper purpose, Thompson v. Clark, 596 U.S. 36 (2022), held that the favorable-termination element of a Section 1983 malicious-prosecution claim is met whenever the prosecution ended without a conviction. Justice Kavanaugh wrote for a 6–3 Court. Civil-side malicious prosecution and wrongful use of civil proceedings follow state-by-state rules, generally requiring termination in the plaintiff’s favor, lack of probable cause, and improper purpose. Successful claims are rare. The bar is high.
Abuse of process. A common-law tort where lawful process is used for an improper, ulterior purpose unrelated to the action’s actual purpose. Damages require showing the process was misused, not merely that the underlying action lacked merit.
Selective prosecution. United States v. Armstrong, 517 U.S. 456 (1996), requires the defendant to show both discriminatory effect and discriminatory intent. The discovery burden alone is steep, and successful claims are exceedingly rare.
Retaliatory prosecution. Hartman v. Moore, 547 U.S. 250 (2006), requires the plaintiff to show the absence of probable cause for the underlying prosecution.
Federal Rule of Civil Procedure 11. Sanctions are available for litigation filed for an improper purpose — to harass, cause unnecessary delay, or needlessly increase the cost of litigation. Rule 11 is rarely the answer for systemic problems, but it exists.
Due Process and the constitutional limits on pre-judgment deprivation. Mathews v. Eldridge, 424 U.S. 319 (1976), provides the balancing framework. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999), holds that federal courts’ equitable jurisdiction is bounded by the practice of the High Court of Chancery as of 1789. Liu v. SEC, 591 U.S. 71 (2020), holds that disgorgement is permissible only when tethered to money returned to victims.
These doctrines, taken together, define a perimeter. Inside that perimeter, conduct may be aggressive, asymmetric, and harmful to its target and still be lawful. Outside it, the law provides remedies that are theoretically available but practically narrow. Qualified immunity for prosecutors and federal agency officials closes most direct civil remedies. The structural gap between what the doctrines forbid and what tactical litigation can do is where lawfare lives.
The Doctrine: When Litigation Becomes Tortious
The two doctrines that come closest to providing direct redress against tactical litigation are malicious prosecution and abuse of process. Thompson v. Clark lowered the bar on the favorable-termination element for criminal-side §1983 claims, but did nothing to alter the malice element, the probable-cause element, or the qualified-immunity defense most government defendants invoke. Civil-side malicious-prosecution claims are governed by state law and remain difficult to win even where probable-cause challenges are colourable.
Abuse of process is conceptually closer to what lay readers mean by lawfare: lawful tools used for an unlawful or extraneous end. But the tort requires proof of a specific ulterior motive and a specific misuse of process — not just an aggressive litigation posture. Most courts read the tort narrowly. Federal civil-rights remedies under §1983 against private parties require state action. Federal officers acting in their enforcement capacity are typically immune.
The gap is not an accident. The legal system intentionally tolerates aggressive litigation to preserve access to courts and to avoid chilling legitimate claims. The cost of that tolerance is borne by defendants who win their cases but lose the years and resources spent winning. That cost is precisely what the academic literature describes when it describes lawfare.
Where SEC v. Barton Sits on the Map
The Barton receivership has been described in many ways across the campaign’s own coverage and in the twelve amicus briefs filed at the Supreme Court: government overreach, due-process violation, an unconstitutional remedy, and regulatory capture. Whether the additional label “lawfare” fits is not a rhetorical question. It is testable.
The test that follows applies five markers drawn from the academic literature on lawfare — Dunlap, Kittrie, the Lawfare Media editorial register, and the doctrinal scholarship on equitable jurisdiction and pre-judgment seizure — to the documentary record in SEC v. Barton et al., No. 3:22-cv-02118-X, in the United States District Court for the Northern District of Texas. The record is public. The five markers either fit, or they do not. Readers can run the test themselves.
Five Markers of Lawfare in the Barton Record
What the Law Has — and Hasn’t — Done About It
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On the criminal side, Thompson v. Clark matters because it lowers a procedural barrier to malicious-prosecution claims. On the civil side, the Barton case sits at exactly the constitutional frontier that the Supreme Court is currently being asked to address. The SCOTUS docket in Barton v. SEC, No. 25-465 reflects the cert petition filed October 14, 2025 by Hunton Andrews Kurth’s Michael J. Edney; the Solicitor General’s Brief in Opposition filed February 25, 2026; the Reply Brief filed March 19, 2026, with former Texas Solicitor General Jonathan F. Mitchell joining as co-counsel; and twelve amicus filings in support of the petitioner. The Rule 44.2 rehearing petition is now pending before the Court, awaiting consideration.
What the rehearing petition asks the Court to decide is not whether the SEC committed crimes. It is whether the remedy as applied is what Article III and the Constitution permit — whether the federal courts’ equitable jurisdiction, bounded by Chancery practice as of 1789, permits pre-judgment seizure of this magnitude, and whether Liu v. SEC permits disgorgement to be untethered from money returned to victims. Those are doctrinal questions about the perimeter the law draws. They are also, by definition, the questions the lawfare framework asks the law to answer.
If the Court grants rehearing and reaches the merits, the constitutional perimeter will be redrawn for every defendant who faces the same kind of remedy. If it does not, the perimeter remains where the Fifth Circuit’s April 17, 2025 affirmance left it. Either outcome is a doctrinal fact, not a political one. Either outcome will determine what the law has — and has not — done about the practice the academic literature now calls lawfare.
The Difference Between Aggressive Enforcement and Lawfare
Aggressive enforcement is bounded. Lawfare is open-ended. The first names a defendant, alleges specific conduct, and brings the action to a defined remedy. The second imposes costs, delays outcomes, targets adversaries’ personal networks, and is largely indifferent to substantive resolution.
— Barton Receivership Editorial Team
Aggressive enforcement and lawfare are distinguishable. Aggressive enforcement is narrow, named, factually anchored, and pointed at a defined remedy. Lawfare, in the academic literature’s framing, is open-ended, asymmetric, cost-imposing, and largely indifferent to whether the underlying merits ever get resolved. Both descriptions are testable against records. Both can be applied to the Barton case.
The five-marker analysis above does not, by itself, answer the question this post raises. Reasonable readers can apply the markers and reach different conclusions about whether the cumulative pattern crosses from aggressive enforcement into the lawfare framework. The campaign’s reading is that the cumulative pattern fits the framework more closely than it fits the standard model of merits-driven federal civil enforcement — and that, at minimum, the constitutional questions the Supreme Court has been asked to consider are the right questions to be asking. The Court has those questions now.
The fight continues.
For Further Reading
• Barton v. SEC: How a Dallas Developer Lost Everything — the pillar piece on the case background.
• The Complete Tim Barton Case Timeline: 2017 to 2026 — full chronology with all docket citations.
• Supreme Court Petition: Where It Stands — the rehearing petition, the 12 amicus briefs, and the Reply Brief.
• 12 Organizations That Stood with Tim Barton — profile of each amicus filer.
• Federal Court Receiverships: How the Government Uses This Tool — the structural pillar.
• Court-Appointed Receiver: What They Can and Cannot Do — a primer on the receiver’s statutory and equitable authority.
• SEC Overreach: The Untold Story — structural-argument essay on the equity question.
• Corrections policy and contact — we welcome corrections. The campaign maintains an open record.