“Lawfare” is becoming a word that ends arguments instead of clarifying them. When Donald Trump or his allies are prosecuted, many on the right call the case political. When the Trump administration investigates critics, many on the left call it retaliation or “score-settling.” Sometimes those accusations are justified. Sometimes they are partisan reflexes. A label that changes with the identity of the defendant is not a rule of law.

The hard cases are not the ones with a public order to punish an enemy. They are cases with mixed facts: a real investigative predicate, a politically active target, disputed timing, later changes in treatment, and no contemporaneous record the public can inspect. Those cases require something better than “trust the prosecutors” or “trust the accused.” They require an auditable standard.

My case is an uncomfortable test

I was an anti-Trump Republican presidential candidate who filed Section 3 lawsuits challenging Trump’s eligibility. I was indicted on Jan. 3, 2024, arrested six days later, and appeared on the New Hampshire Republican primary ballot two weeks after that.

Those facts understandably raise questions. But an honest account must include the facts that cut the other way. The IRS investigation began in 2018, years before my presidential campaign and Section 3 litigation. After a five-day bench trial, I was convicted on 33 tax counts, sentenced to 188 months, and lost the principal issues on appeal. No court has found political retaliation.

Yet the early start date cannot answer every later question. My civil lawsuits against Trump, the United States, and IRS personnel later became part of the basis for an obstruction-of-justice enhancement. The Fifth Circuit relied on those suits, a settlement proposal, an email notifying an agent that a lawsuit had been filed, and testimony that “multiple witnesses” were hesitant to testify because of my litigation history.

That does not prove the prosecution was political. It does show why the usual binary debate is too simple. A case may begin for legitimate reasons and still be expanded, accelerated, timed, publicized, or used at sentencing in ways influenced by politics. The reverse is also true: close election timing and political controversy may look suspicious while every official decision remains legitimate.

What both sides get right

The government’s strongest point is essential: a person cannot create immunity by declaring a candidacy, criticizing a president, or filing political litigation. Prosecutors must remain able to investigate and charge real crimes. A political figure should not receive a lower standard of accountability than anyone else.

The civil-liberties answer is equally important: prosecutorial discretion is broad, consequential, and often hidden. Decisions about whom to investigate, how aggressively to proceed, when to indict, whether to arrest publicly, what to say, and how to characterize protected political activity can damage democratic participation even when a charge rests on probable cause.

The Justice Department already recognizes both concerns. Its Principles of Federal Prosecution forbid decisions influenced by political association, activities, or beliefs. They also bar selecting investigative steps, charges, or timing for the purpose of affecting an election. A separate policy requires consultation with the Public Integrity Section when an action is likely to raise such an issue or even the perception of one.

But the same manual says these safeguards create no enforceable right and directs government lawyers to oppose efforts to litigate noncompliance. The public is promised neutrality while the records that would demonstrate it usually remain internal.

A lawfare audit before the target is known

Both parties should support the same stage-by-stage “lawfare audit” before knowing whether the target is Trump, a progressive prosecutor, a protest organizer, a conservative activist, or an obscure primary candidate.

1. Preserve the original predicate. The government should record what first generated the matter: tax data, a complaint, an agency referral, a witness, surveillance, or another source. A legitimate origin should be demonstrable, not merely asserted years later.
2. Document material changes. If the scope, personnel, resources, theory, or urgency changes after the subject becomes politically prominent, the responsible officials should record why.
3. Explain election-sensitive timing. Before a major overt step close to an election, an independent career official should assess when the case became ready, why action is necessary then, and whether less disruptive alternatives exist.
4. Preserve political contacts and protected activity. Contacts involving elected officials, campaigns, political appointees, party organizations, or intermediaries should be logged. Protected speech, association, litigation, and candidacy should not be used as aggravating conduct without a separate finding identifying the unlawful act.
5. Permit limited neutral review. Upon a concrete showing of political contact, selective acceleration, or inconsistent treatment, a court or inspector general should be able to review the sealed record. Grand-jury material, sources, and methods can remain protected.

This process would not automatically dismiss charges, expose confidential evidence, or invite open-ended discovery. It would create a contemporaneous neutrality file that can later resolve a serious dispute. In emergency circumstances, action could proceed with prompt post-action review.

Let records replace partisan instinct

A lawfare audit could prove my suspicions wrong. It could show that neutral tax information generated the investigation, that later decisions followed ordinary practice, that no political contact affected the case, and that election timing reflected investigative necessity. That result would strengthen the government’s account.

It could also reveal an outside request, unexplained escalation, unusual timing, selective treatment, or impermissible reliance on political activity. If so, the public should know. The purpose is not to make the defendant’s accusation self-proving. It is to prevent the government’s denial from being self-proving too.

“Lawfare” should not mean “a prosecution of someone on my side.” It should describe the use of legal power for an improper political purpose, proved through evidence and tested against a neutral process. Suspicion alone is not enough. Neither is a legitimate first step a permanent excuse for everything that follows.

Candidates cannot immunize themselves by entering politics. Prosecutors should not immunize every later decision by pointing to a valid origin. A party that demands an audit only when its allies are targeted does not oppose lawfare; it opposes losing control of it.

John Anthony Castro is serving a 188-month federal sentence and continues to challenge aspects of his prosecution and sentence. The Fifth Circuit affirmed the principal rulings discussed below, and no court has found that the prosecution was politically retaliatory.

Castro is an incarcerated pro se federal appellant and former Republican candidate for U.S. Senate, U.S. House, and president. He holds a J.D. from the University of New Mexico School of Law and an LL.M. in Taxation from Georgetown University Law Center, is a Harvard Business School alumnus, and is not licensed to practice law.