Last year, Manhattan District Attorney Alvin Bragg unsealed a criminal indictment against former President Donald Trump for 34 counts of falsifying business records. To right-wing pundits, this amounted to a declaration of war—a “legal jihad,” in the words of a Wall Street Journal op-ed. It was only one of a series of indictments. And Trump, along with his clique, needed an explanation of how all this was just a witch hunt. In the spinning of Trump’s crimes, a portmanteau has appeared that holds the logic of their argument: “lawfare.”

In July, Trump’s defense team used it in a motion to toss out his guilty verdict. At this summer’s National Conservatism Conference, John Yoo (of the torture memos) and John Eastman (of the coup memos) discussed “Lawfare: The Criminalization of Politics.” House Judiciary Committee Chair Jim Jordan even proposed legislation that would “defund the lawfare activities” of state and federal prosecutors.

As institutions prove their independence by holding Trump accountable, he calls them corroded, arguing that he must be allowed to further break laws and democratic norms to fix them.

“We want to restore both the perception and the reality of respect in the judicial system,” Elon Musk told Trump in a rambling two-hour X interview on August 12. “Just, you know, stop the lawfare.”

The timing is important. Trump and his allies intensified attacks on the legal system only after the former president was on the losing end of it. Trump has long campaigned on restoring law and order. But what to do when he’s held to it? The corrupt courts came after me, he tells us, and they could come after you, too. Unless, of course, the country reelects Trump to clean it all up.

It’s tempting to flatter myself with the idea that the former president is suddenly obsessed with Lawfare, the online publication focused on national security and threats to democracy where I work as managing editor. But the right’s version of lawfare—and other Trumpian variants such as the redundant “legal lawfare”—have taken a longer, stranger journey to Trump’s Truth Social page. The term’s modern usage is often attributed to Air Force Maj. General Charles J. Dunlap Jr. Reacting to debates about war strategies used during the 1999 Kosovo campaign and in the wake of 9/11, Dunlap defined it as “the use of law as a weapon of war.” He later clarified lawfare as a value-neutral tool, but many still use it pejoratively.

In the 2010s, the word “lawfare” moved to the domestic politics of South America. When progressive leaders like Brazil’s Luiz Inácio Lula da Silva and Argentina’s Cristina Fernández de Kirchner faced dubious corruption charges, the Anglicism “lawfare” appeared nearly daily in speeches and media stories. Kirchner in particular called out the use of manipulative legal procedures to delegitimize progressive leaders.

Trump and his supporters are doing more than merely swapping left with right. In August, the former president told Musk that lawfare is something that happens “in banana republics and third world countries,” an unprecedented phenomenon in the United States until his prosecutions in New York, Georgia, and other jurisdictions. Crying lawfare helps Trump cultivate an image of America akin to a corrupt Latin American country—a banana republic he alone can redeem. (Trump’s team has warned his legal woes mean America is becoming like “Cuba and Venezuela.”)

The lawfare label thus lends an ironic twist to his legal proceedings. As institutions prove their independence by holding Trump accountable for breaking laws and democratic norms, he calls them corroded, arguing that he must be allowed to further break laws and democratic norms to fix them. Trump’s recent embrace of the term lawfare reflects his understanding of law as a pliable means to a political end, rather than a check on power and an impartial instrument of justice. For an emerging right, all is fair in law and war.

“You have to retaliate against them in exactly the same way until you get some deterrence,” Yoo reportedly said on the NatCon panel. “If we’re not going to become a banana republic, unfortunately we’re going to have to use banana republic means.” Another recent Newsweek op-ed captures the right’s have-your-cake-and-eat-it-too lawfare. “If we want to get back to ‘neutrality’ [of the law] at this perilous point,” author Josh Hammer writes, “it’s going to first take bloodying up some noses.”

In 1986, Oxford University Press published The Uncensored War. An analysis by Daniel C. Hallin of media consumed in the United States during fighting in Vietnam, the monograph remains an important account of America’s first televised war. But a small diagram on page 117 would become the work’s greatest legacy: an illustration now referred to as “Hallin’s spheres.”

To visualize the model, imagine a target made of two concentric circles, surrounded by a vast hinterland of empty space. The smaller circle at the center represents the sphere of consensus, the region of “motherhood and apple pie,” Hallin writes. There, you can find all that is beyond question in US thought: democracy, American exceptionalism, American honor. The larger circle, the sphere of legitimate controversy, is where debates tend to take place: immigration, the economy, taxes. In the outermost region, the sphere of deviance, you find “actors and views which journalists and the political mainstream of the society reject as unworthy of being heard.” 

The spheres helped Hallin explain why some ideas about Vietnam were naturalized, others were vigorously discussed, and many were dismissed as fringe. During the entire coverage of the war—thousands of TV hours—Hallin never found a single talking head utter the word “imperialism.” The idea lived only in the diagram’s outer layer, unallowable in discussions.

Today, most people know Hallin’s work through an heir: the Overton Window.

In recent years, the Window has become, as Politico argued, a “shorthand for the state of American politics”—a way to address the loss of a common middle ground during the Trump era. But its roots in conservative thought cannot help poking through.

In the 1990s, Joseph Overton, an executive at the free market think tank the Mackinac Center for Public Policy, built a cardboard-cutout window. In a popular version of the model, ideas were placed on a linear axis that ranged from the “unthinkable” on the far left, to the “popular” (and “actual policy”) on the right. Overton’s cutout could slide between these. This visualized how ideas had to move through several steps (“radical,” “acceptable,” “sensible”) before they reached their embodiment as laws. Ideas achieved political viability only when they fit inside the window frame.

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Hallin’s spheres

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In this way, the Window assumes a sequential public discourse, where the status quo is always at risk from the radical. Hallin’s spheres, by contrast, offer an X-ray of how discourse takes place. Hallin’s model does not ask how a new idea becomes normalized. Instead, it ponders why so many topics are considered outside allowable discussion.

The two frameworks have distinct visions. Hallin’s is descriptive. It reveals how radical ideas are pushed outside of public discourse. Overton’s is prescriptive. It serves as a model for changing the country’s laws.

As the more prominent, Overton’s model has saddled our views of what’s desirable with the weight of what’s politically viable. Using it, we begin to all think a bit like politicians. This limits our imaginations and directs our political creativity toward “sensible” objectives.

Within Hallin’s model, discussions do not become blandly about whether or not a once-radical notion was normalized, as they do within Overton’s.

“With Black Lives Matter we were moving toward a consensus on anti-­racism” in certain parts of the country, especially following George Floyd’s murder, Hallin, now a professor emeritus at the University of California, San Diego, explained to me. “Then, the right started a big campaign to re-politicize race and focus on critical race theory.” Suddenly, calls for racial equality—a radical discussion worth having—drifted back out toward the realm of unacceptable in common discourse.

Hallin cites the January 6 attack on Congress as an example of the opposite. At first, the insurrection was considered deviant. “Then,” he said, “the Republicans made a big effort to push it back into the sphere of legitimate controversy.”

Fitting public discourse along a line that stretches between the unthinkable and the reasonable affects our perception differently than imagining public conversations as shifting across zones of consensus, controversy, and deviance, and wondering why that is. After 30 years of use and abuse, it may be time to set the Overton frame aside and give the spheres another spin.