A Litigation Playbook for Narrative Warfare

I confess that I wanted to read Sen. Eric Schmitt’s (R-Mo.) book, “The Last Line of Defense: How to Beat the Left in Court,” because I appear in it as a villain. Not by name—Schmitt prefers to invoke “the global NGO nexus” or “so-called researchers” or “The Censorship Industrial Complex” when describing the fantasy cabal he claims ran a government censorship operation out of university research centers … including mine. I started paying attention to Schmitt prior to his election to the Senate in 2022, when he and D. John Sauer (now solicitor general of the United States) demanded the names of Stanford undergraduate colleagues while deposing civil servants as they hunted for evidence of this “complex.” A man who believes that the “deep state” staffs its secret operations with undergraduate interns is a special kind of thinker.

It’s because I’m familiar with those depositions that I’m writing this review: Sen. Schmitt lies about their contents in his book, brazenly and repeatedly. That alone would justify a critique. But it’s also important for readers to understand “The Last Line of Defense” in the context of the worldview that justifies and rewards those actions.

Early in the book, Schmitt writes: “When you have a story that makes sense—and conservatives usually do—a courtroom gives you a perfect venue to tell that story.” This sentence is key to understanding the book and the man. Throughout, Schmitt presents the courtroom as a theater to generate attention rather than a place to seek justice. A venue to tell a story.

Prior to his election to the Senate and his foray into the literary, Schmitt served as the attorney general of Missouri. After Joe Biden won the 2020 election and Donald Trump refused to concede, Schmitt joined other Republican attorneys general in attempting to invalidate the results. After that failed, he filed 25 lawsuits against the Biden administration in roughly 20 months—a number he touted on the campaign trail. Many of those cases are described in the book, which is intended as a “road map” for other Republican attorneys general and litigators to follow. It describes the value of coordinating multi-state litigation, including via forum shopping. It credits Stephen Miller and his conservative legal advocacy group, America First Legal, as key allies in the effort.

What Schmitt doesn’t say is that, although the book’s subtitle is “How to Beat the Left in Court,” he lost at least half of those cases. Schmitt carefully conceals this fact from the reader; while he discusses the ins and outs of much of this litigation in detail, I found myself frequently Googling to learn the cases’ outcomes. This is on brand for Schmitt, who frequently monologues from the Senate dais about the lower court decisions in Murthy v. Missouri—perhaps his most famous case, which alleged that the “Biden regime” was censoring social media. The Supreme Court decision in that case, however, ultimately went so poorly for Schmitt that in her opinion tossing it, Justice Amy Coney Barrett wrote multiple paragraphs of footnotes detailing how flimsy the evidentiary record was, and noting “clearly erroneous” findings by the lower courts. Yet, if you didn’t know better, from Schmitt’s telling you might think the loser had won. 

The book takes the reader on a tour of theatrical lawsuits. Schmitt dedicates a chapter to his made-for-the-headlines lawsuit against the Chinese Communist Party (CCP), for inflicting the COVID-19 pandemic upon the United States, and specifically for causing “the enormous loss of life, human suffering, and economic turmoil experienced by all Missourians.” He won, in the narrow sense that Missouri secured a $24 billion judgment after the CCP did not show up to defend itself. But it seemed to be a case of maximal moral theater, minimal practical remedy: Missouri has not yet recovered anything, while China has countersued. The language Schmitt uses to justify the suit, however, is striking: “When the evidence was mounting that Covid-19 was going to become a deadly, highly communicable disease, the CCP had knowledge about the virus that no one else in the world had.” He continues: The Global Times “lied about the virus to calm the masses.” It “spread dangerous misinformation.” China “hoarded” personal protective equipment such as masks.

The next few chapters then deliver accounts of Schmitt’s litany of lawsuits against COVID-19 mitigation measures—lockdowns, vaccines, and the audacity of government officials communicating with social media companies about content moderation. He writes about suing over various vaccine-related mandates; he had a mixed record there. But, he continues, “vaccines weren’t even half the battle. We still had to deal with masks.” How did he deal with them? By suing 45 Missouri school districts that required students to wear masks, at his own admission “at the peak of the Omicron wave.” Schmitt boasts throughout the chapter about being a bold contrarian with the law on his side. But in 2023, a judge found that Schmitt “lacked any legal authority” to order districts to end COVID-19 mitigation measures. That finding didn’t make it into the book.

Across these chapters, the pandemic was simultaneously devastating, spread through unrestricted movement, and enabled by dangerous misinformation—but also insufficiently serious to justify mitigation responses by school districts. “Misinformation” is a fake concept when American experts™ or scientists™ use it (trademark symbols Schmitt’s), but a crime against humanity, or at least Missouri, when China spreads it. China illegally hoarded the masks it produced, but Missouri schoolchildren should never have worn them. The cognitive dissonance might have killed a lesser man. But if the role of an attorney general is to tie up political enemies in legal proceedings to “tell stories,” it all makes sense. 

In his book, the former attorney general of Missouri turns the courtroom into a content-production facility, and advocates that others follow his lead. The filing is a press release. A successful outcome is a nice-to-have, but winning the framing war is the real victory.

The problem is that for the defendants in some of these cases, it’s not just a “story”—it’s a time-consuming and expensive attack. It’s a smear with life-altering consequences. Indeed, it’s in the chapter on Murthy v. Missouri that Schmitt’s account turns into what might charitably be called fiction, or perhaps even defamation. Here, Schmitt simply lies about what career civil servants said in their depositions.

Consider the deposition of former FBI agent Elvis Chan, who was tasked with communicating with social media platforms leading into the 2020 election. In his book, Schmitt claims the FBI “encouraged platforms to adopt policies requiring them to censor ‘hacked’ materials—which the platforms did.” He writes, “Chan basically admitted that the FBI had tricked and deceived social media platforms into censoring” the Hunter Biden Laptop story “—an act of censorship so egregious that it could very well have swayed the outcome of the 2020 presidential election.”

The word “basically” is doing a lot of work there; it converts explicit denials into the opposite of their meaning. 

Twitter’s hacked materials policy was developed in 2018, primarily in response to hack-and-leaks of nonconsensual intimate images, and independent of government involvement. What Chan actually says, verbatim, is, “we never told the companies to modify their terms of service or community standards.” Chan also clearly states that he was personally unaware that another part of the FBI had Hunter Biden’s laptop in its possession, and that Hunter Biden was “not referred to” in his meetings with the companies prior to the laptop story breaking. He doesn’t “basically admit” any of what Schmitt claims; he denies it.

Schmitt similarly twists the deposition of Brian Scully, an election official who worked at the Cybersecurity and Infrastructure Security Agency (CISA), writing: “As Scully admitted, CISA orchestrated the creation of the so-called Election Integrity Partnership” (EIP). In reality, Scully’s testimony reveals a different sequence of events. He recounts conversations with Stanford-affiliated CISA interns about how under-resourced local election officials were responding to online rumors. He relates that the students subsequently discussed this issue with their professor, Alex Stamos; from there, the students and Stamos developed the idea for EIP and reached out to CISA to present it. Schmitt converts that sequence into a federal plot. It is also in this deposition that his team demands Scully disclose the names of undergraduates.

Also featured in this chapter is Dr. Anthony Fauci. In his deposition, Fauci repeatedly says that he never communicated with tech platforms about misinformation, that his staff connected with platforms primarily around impersonation accounts, and that he is “dissociated from social media.” He says he doesn’t pay attention to “what gets put up and put down,” and describes speaking to Mark Zuckerberg a few times—to arrange a Facebook podcast appearance encouraging people to get vaccinated. When shown an email he had not previously seen, Fauci acknowledged that communications staff at the National Institute of Allergy and Infectious Diseases appeared to have independently contacted Google at one point about vaccine misinformation. But across the seven-hour deposition, he reiterates the same point: “I can repeat it for the hundredth time, I really don’t get involved in social media issues.”

Schmitt’s assessment of this testimony: “Despite this obfuscation Fauci could not hide that he had personally orchestrated the censorship of millions of Americans on social media.”

The Murthy chapter is a mess; not just deceptively false where the depositions are concerned, but legally confused. In describing Facebook’s outreach to the government, the former attorney general of Missouri writes, “Then Facebook would email the CDC beforehand and ask them to say in advance what should be censored when the announcement came out. This is what constitutional law calls a ‘prior restraint’ on speech—the very worst kind of First Amendment violation.” Except it isn’t. A private company asking the government for help is not the government coercing the company, nor restraining speech. There’s no First Amendment violation there at all. 

But again: The point is not accuracy. As Schmitt tells the reader, the point is the story. And in the age of framing and attention games, this realization is unfortunately not entirely wrong. I can fact-check blatant inaccuracies, highlight the egregious twisting of the depositions, but ultimately there will be no consequences for Schmitt for smearing civil servants or targeting undergraduates serving their country in a public-sector internship. The targets, however, have all learned what it means to be of interest to the rage machine. They became the focus of mobs on X. Scully and Chan were both removed from their jobs when Trump was reelected.

“Unlike the legislative and executive branches, the judicial branch is supposed to exist outside politics,” Schmitt writes at one point, in homage to former Supreme Court Justice Antonin Scalia. That is, indeed, the ideal. But this book is part of a strategic effort to upend that principle. It was the Supreme Court that tossed Schmitt’s most famous case. Ethical judges recognize that democracy cannot function if the vision contained in this theatrics handbook is realized.

“The Last Line of Defense: How to Beat the Left in Court” is standard populist fare with a requisite Orwell epigraph, appropriate signifiers of contempt (“experts™”), and roughly three references per chapter. It is written for an audience that will not catch the falsehoods, or which might cheer them because the right enemies are being owned. But as a glimpse into worldview and strategy, it is instructive. The key takeaway is that the filing is the victory, outcomes are secondary, and hallowed institutions—courts, now the Senate—are performance venues. 

The story is the point. Whether the story is true is someone else’s problem.