When courts and laws become political weapons, from Sheikh Jarrah to Brazil

The Short Version

Four guests with almost nothing else in common make the same accusation: that courts, prosecutors and statutes were used to remove or silence an opponent while keeping the appearance of neutral procedure. Mohammed El-Kurd says Israeli courts and land law expelled Palestinian families from Sheikh Jarrah as policy, not as a property dispute [1]. Michael Shellenberger says a single Brazilian Supreme Court justice secretly ordered journalists and politicians banned from every platform [2]. Mike Benz says a doctrine called "transitional justice" was used to push prosecutions of defeated populists in Poland and Brazil [3]. Harvey Silverglate says American federal law is broad enough that prosecutors can pick the person first and find the crime afterward [4]. These are the speakers' own claims about very different situations, and they do not agree on remedies, or even on whether outside pressure on a court is the abuse or the cure.

Table of contents

What They Said

Mohammed El-Kurd: "legality does not necessarily mean morality"

El-Kurd's case is the most personal. His grandmother was expelled from Haifa in 1948 and settled in Sheikh Jarrah in 1956, when it was built as refugee housing by the UN and the Jordanian government, which then controlled East Jerusalem [1]. From the 1970s, settler organizations, many registered in the United States, claimed the homes [1]. He says Israeli courts accepted the settlers' documents at face value while refusing to consider Jordanian, UN or Ottoman records, and he describes the result not as a real estate dispute but as political "social engineering" aimed at reducing the Palestinian population of Jerusalem [1]. In 2009 he came home from school to find settlers living in half of his family's house [1].

His argument has three parts. The first is jurisdiction: under international law East Jerusalem is occupied, so he considers Israeli jurisdiction there illegitimate, and he rejects the word "evictions" because, in his view, evictions do not involve a foreign army in occupied territory [1]. The second is that the rules produce the violations they punish. In Silwan, he says, Palestinian homes are demolished as "illegal" even though an Israeli military spokesperson confirmed that about 95% of Palestinian building permit applications in Jerusalem and the West Bank are rejected, and he names a Jerusalem council member and settler activist who oversees permits and has publicly called for a second Nakba [1]. The third is who is judging. In Masafer Yatta, where he says more than a thousand residents were expelled after areas were declared military firing zones in the 1980s, he says Israeli state archives show this was done to expel them, and that the judge ruling on the case lives in a settlement [1].

When Lex Fridman notes that the evictions are technically legal, El-Kurd compares it to Jim Crow: "legality does not necessarily mean morality" [1]. He adds that whether individual judges feel hatred matters less than the policies they carry out [1]. In his telling of the Nakba as ongoing, artillery has been replaced by the courts [1].

His account also shows what moved the courts. After his family's 2021 campaign went global, and under international and diplomatic pressure, including from the United States, the Israeli Supreme Court froze the Sheikh Jarrah eviction orders [1]. He calls it a small victory, since a pending land registry could still dispossess them because Israeli courts do not recognize Ottoman-era ownership papers [1]. Fridman, for his part, presses him on Israeli security concerns throughout, and the summary of the episode reports El-Kurd's views as he presented them [1].

Michael Shellenberger: one justice, secret orders

Shellenberger's subject is Brazil. He describes his Twitter Files Brazil reporting as revealing "one of the most extreme forms of censorship we've seen in democratic countries" [2]. The center of it is a Supreme Court justice who, he says, secretly demanded that particular journalists and politicians be banned not only from X but from every platform [2]. He describes the effect on the targets: "So you're basically like just depersoning people just destroying their career" [2].

His example is congressman Marcel van Hattem, who Shellenberger says was supposedly deplatformed for election misinformation over a video that was posted the day after the election and was about labor issues [2]. From that he draws his conclusion about the process: "it's just arbitrary rule by one guy that's why I say it's a dictator" [2].

He also describes how the legal pressure reached past the direct targets. X was later banned in Brazil, and Brazil froze Starlink's bank accounts, which Shellenberger says shows that Elon Musk's other businesses make him vulnerable; he says Facebook and Google appear to have complied right away [2]. He frames X's dilemma as a choice between refusing on principle to ban a few dozen people, probably under 100, and restoring access for about 20 million Brazilians [2].

He holds President Lula responsible for going along with it. Shellenberger interviewed Lula in 1994 and says Lula assured him his socialism would be democratic and would respect free speech; after Lula's party began defending censorship, his reaction was "you lied to me" [2]. He reads the Brazilian case as part of a wider reaction by what he calls the deep state and a center-left global elite against populist movements [2]. He does not treat the abuse as belonging to one side by nature: historically, he says, censorship came mostly from the right, citing the Sedition Act era of the early 20th century [2].

Mike Benz: "transitional justice" as a way to make defeat permanent

Benz gives the pattern a name and a theory. Media attacks cost reputations, he says, but a captured justice system is worse: "when the criminal justice system and the judges are rigged and the prosecutors are rigged you don't even have a country anymore because they can arrest the president" [3].

He explains transitional justice as the doctrine of prosecuting the leaders of a government after it is replaced, and puts his reading of it bluntly: "weaponizing the justice department and creating the criminal predicate to eliminate your political adversaries you just narrowly vanquished in a nail-biter vote" [3]. In his view it makes foreign influence cheaper by ensuring a defeated rival cannot return [3].

His Polish evidence is an article in the National Endowment for Democracy's Journal of Democracy arguing that Poland's new Tusk government must pursue transitional justice to prevent the return of the PiS party, that it "must stabilize the political system" by "stamping out populism," and listing cases to prosecute, including a mail-in election plan [3]. He asks listeners to imagine Russia sending Trump a list of opponents to indict [3].

On Brazil he overlaps with Shellenberger. He shows images of Justice Alexandre de Moraes, head of the electoral court that banned X, at training linked to a USAID program, and says Internews ran trainings on flagging pro-Bolsonaro disinformation [3]. More broadly, he says USAID "judicial reform" programs operate in country after country, and he has Joe Rogan search the phrase to show programs in Serbia, the Democratic Republic of Congo, Albania, El Salvador, Ukraine, Georgia and more; his charge is that they exist to "rig the scales of justice" in favor of the foreign policy establishment's interests [3]. He makes a parallel claim about journalism feeding prosecutors: a USAID page for an investigative reporting program run with OCCRP lists among its achievements 21 resignations or sackings, including a sitting prime minister, and 456 arrests and indictments [3]. Benz argues these are state-sponsored hit pieces that hand prosecutors ammunition against the State Department's opponents [3].

These are Benz's own readings of the documents, and on some topics he stresses that he is raising questions rather than making firm claims [3].

Harvey Silverglate: pick the man, then find the crime

Silverglate is a civil liberties lawyer who has spent his career on the American version. He agrees with his friend Alan Dershowitz's book Get Trump that efforts to stop Trump may be the greatest threat to civil liberties since McCarthyism [4]. On the Manhattan prosecution brought by Alvin Bragg, he says he does not believe it describes a crime, says Bragg was pressured by people in his office threatening to quit if he did not indict, which he calls "wholly improper, wholly unethical," and predicts Bragg will lose [4]. He says Trump has "become a target by ambitious politicians and vicious prosecutors" [4].

What separates him from a partisan is the next part. He believes Trump has likely committed tax crimes and could easily be indicted for them [4]. And of the sympathy Trump has received: "He has gotten some sympathy, which he doesn't deserve" [4]. His objection is to the method, not on behalf of the man.

The method, as he explains it, rests on the breadth of federal law: "Anything can be made a federal crime if, in the course of the commission of the crime, the means of interstate communication or travel are used" [4]. Since almost any plan involves a phone call or a letter, his book Three Felonies a Day argues that federal prosecutors can indict almost anyone, which allows them to target dissidents [4]. When Fridman asks whether this resembles the Stalin-era maxim, show me the man and I will show you the crime, he agrees: agents decide who is guilty and then build a case [4].

He applies the same suspicion to the investigators. FBI agents interview in pairs, with one taking notes that become a Form 302 report, which he says he has never seen be accurate, because agents write what they wish you had said [4]. He thinks the FBI's culture was so corrupted by J. Edgar Hoover that it should be replaced by a new agency [4]. And he sees a small-scale version on campuses, where speech codes are enforced by what he calls kangaroo courts [4].

Where They Agree, and Where They Don't

They agree that procedure can hide a decision already made. El-Kurd says the courts accepted one side's documents and refused the other's [1]. Shellenberger says a video about labor issues was treated as election misinformation [2]. Benz says a list of cases to prosecute was published before any trial [3]. Silverglate says agents choose the guilty party and then assemble the case [4].

They agree that broad or selectively applied rules are the tool. A permit system that rejects about 95% of applications makes most building "illegal" [1]. A category like misinformation can stretch to cover a post about something else [2]. A federal code that reaches any phone call can reach anyone [4].

They agree that legality settles nothing. El-Kurd says so directly [1]. Silverglate does not think the Bragg indictment describes a crime even though it was lawfully brought [4]. Shellenberger calls a sitting justice a dictator [2].

They disagree about outside pressure on courts. This is the sharpest tension across the four. For Benz, foreign money and advice flowing toward another country's judges and prosecutors is the offense itself, which is why he asks his audience to imagine Russia handing Trump a list [3]. For El-Kurd, international and diplomatic pressure, including from the United States, is what froze the eviction orders against his family [1]. Each holds his view for an understandable reason: Benz sees outside influence overriding what voters chose [3], while El-Kurd considers the court's jurisdiction over him illegitimate to begin with and has no vote in the state that runs it, being a resident with a blue ID card and not a citizen [1]. The sources do not reconcile these positions.

They disagree about who is doing it. Shellenberger and Benz describe an anti-populist establishment acting against the right [2][3]. El-Kurd describes a state acting against an occupied population and points to US support for it, including $3.8 billion in annual military aid [1]. Silverglate blames institutional culture and structure: the FBI since Hoover, administrators, and an overgrown federal code, with both liberal and conservative justices worried about ending up in the minority [4].

They disagree about the guilt of the targets. Silverglate insists a target can be guilty of something and still be wrongly prosecuted [4]. Benz and Shellenberger, in the material here, do not weigh whether any of the Polish or Brazilian targets broke the law [2][3], so the reader gets the accusation without the other side's case. The same is true of El-Kurd's account, which the episode summary presents as his view [1].

Why It Works

The sources suggest several reasons law is an effective weapon.

It carries legitimacy. Fridman's first response to El-Kurd is that the evictions are technically legal, which is the reaction a court order is built to produce [1].

It is more final than bad press. Benz's ranking is explicit: a headline can cost a job, but prosecutors can arrest the president [3]. In his account, prosecuting a defeated government's leaders is how a narrow election win is made permanent [3].

Secrecy and scope multiply it. Shellenberger stresses that the Brazilian orders were secret and applied across every platform, a tactic he says he had seen before in documents about a group called the Cyber Threat Intelligence League [2].

It reaches third parties. Freezing Starlink's accounts put pressure on X through an unrelated business [2].

Vague categories do the work. "Illegal" construction [1], "misinformation" [2], "populism" to be stamped out [3] and any crime touching interstate communication [4] are all wide enough to cover a chosen target.

The record is written by one side. Silverglate's point about Form 302 reports [4] matches El-Kurd's point about which ownership papers a court will read [1]: whoever controls what counts as evidence controls the outcome.

Where It Applies, and Where It Doesn't

Each of these is one participant's account. El-Kurd is a party to the dispute he describes [1]. Shellenberger says the Brazilian justice is "basically a dictator," which is his characterization [2]. Benz's case is his interpretation of grant pages and articles, and he says where he is speculating [3]. Silverglate was predicting the outcome of a case that had not been tried when he spoke [4].

The pattern does not mean every prosecution of a politician is political. Silverglate himself thinks Trump could properly be charged with tax crimes [4]. Nor does it mean courts cannot check themselves or be checked: the Israeli Supreme Court froze the eviction orders [1], and Silverglate praises the jury system of 12 ordinary citizens who must agree unanimously [4].

The four situations are also different in kind. Sheikh Jarrah involves land, residency and military occupation [1]; Brazil involves speech and platforms [2]; Poland involves prosecuting a former governing party [3]; the American examples involve federal criminal law and one state prosecution [4]. The comparison shows a shared complaint, not a shared cause.

What To Do With It

1. Ask whether the rule could be obeyed. El-Kurd's permit example is the model: if about 95% of applications are rejected, "illegal" describes the system more than the builder [1].
2. Check what evidence the tribunal refused to hear. Which documents were admitted and which were excluded is where El-Kurd says his family's case was decided [1].
3. Look at whether the order is public. Shellenberger's objection to the Brazilian bans starts with their secrecy [2]. Silverglate's rule is that "Sunshine is the best disinfectant" [4].
4. Compare the stated offense with the actual conduct. The van Hattem video is the test case: an election charge attached to a labor video posted after the election [2].
5. Separate the target from the method. Silverglate thinks little of Trump and still opposes the Bragg case; hold both thoughts [4].
6. Notice who judges and who pays. El-Kurd points to a judge who lives in a settlement [1]; Benz points to foreign-funded training for judges and prosecutors [3].
7. Apply the role-reversal test. Benz asks how it would look if a foreign rival supplied the list of people to indict [3]; Silverglate notes that justices of both camps protect speech because each side may someday be in the minority [4].
8. Do not talk to federal agents without a recording. Silverglate brings a tape recorder to client interviews, ends the meeting if agents refuse to be recorded, and advises people never to talk to FBI agents who show up at the door [4].
9. Use publicity. The Sheikh Jarrah campaign set out to "demystify" the situation and went global before the court acted [1], and Silverglate says embarrassment after publicity usually forces universities to back down [4].
10. Be wary of fixes that invite retaliation. Silverglate warns that court packing would bring endless retaliation [4]; Benz's alternative is a hard firewall with criminal penalties and civil liability for agencies that turn foreign-facing operations on domestic opponents [3].

Sources

1. Mohammed El-Kurd on Palestine: Sheikh Jarrah, Occupation, Resistance and the Power of Words · Lex Fridman Podcast
2. Michael Shellenberger on Joe Rogan: Censorship in Brazil, Drug Policy and a New UAP Whistleblower · The Joe Rogan Experience
3. 2272 – Mike Benz · The Joe Rogan Experience
4. Harvey Silverglate on Free Speech, Campus Censorship, the FBI and Criminal Justice · Lex Fridman Podcast