Regime Change . . . The Topic
Fractionally Legal v. 57 Looks at America’s Misdirection
No, I didn’t quit.
Actually, we just closed the books for 2025, and revenue from the fractional general counsel practice increased about 20% YoY, even in the age of AI. Granted, it’s still early innings—our second full year—but I’m bullish. Why? Small firms and solos are using AI to produce solid legal work at a price their clients can afford. Whether AI-native law firms can provide quality work at even lower prices with fewer lawyers and more tech - and who can own those firms - is an open question.
Changing the topic . . .
As our epic winter of 2025–2026 winds down, hopefully, change is in the air. Regime change in Iran, maybe. I’m actually astounded at the amount of ink that has been spilled debating whether Trump’s Iran war is “legal” or not. The legality or illegality of Trump’s actions misses the point. The Constitution is pretty explicit that only Congress can declare war (Article I, Section 8, Clause 11), but the Constitution also says that the President is the Commander in Chief. Back in the day, there was a hoopla around “declaring war.” But the U.S. has not “declared war” since World War II. Since 1973, the making of war has been governed by the War Powers Resolution (not a law), which provides that the “President, as Commander in Chief, may introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
The War Powers Resolution was vetoed by President Nixon, and that veto was overridden by Congress. It was really dumb of Nixon to veto it. He should have loved it because it basically gave the President two additional ways to use the Armed Forces short of a congressional declaration of war. After the War Powers Resolution, other presidents—most notably the Bushes—made an art of getting Congress to provide specific statutory authorizations for their military actions. I remember the hoopla around Operation Desert Storm and the second Gulf War—the Bushes were able to create a patriotic narrative that led the country into a military conflict.. This was all legal, since all the Bushes needed to engage in two wars in Iraq and a 20-year (!) war in Afghanistan was one congressional authorization, each. It was all sort of fun, in a craven way. And opposition to the hoopla built a lot of political careers on the left. Bucking the patriotic narrative about showing off America’s military might was a very principled thing to do
Trump’s war in Iran is just craven, and not fun. He never attempted to build a consensus, be a leader, or sell his war. There are actually good reasons for attacking Iran: securing Israel, constraining the supply of oil to China, making Europe more dependent on U.S. oil, and stopping Iran from arming Russia. The War Powers Resolution gave Trump a way to build the case for a congressional authorization to attack Iran, and his Republican Congress is pliable enough to provide it. But, like most things when it comes to governing, Trump blew it.
In fact, the congressional debate is not about whether to authorize the Iran war. It’s about whether to require Trump to come to Congress for authorization. Congress voted not to require a resolution authorizing the war—yes, we’re sort of in the Upside Down now.
Ironically, now that there has been an attack upon the U.S. armed forces by Iran, the War Powers Resolution arguably does not matter, because Trump can use the armed forces once the armed forces have been attacked. Academics, God bless them, can probably debate this legal tautology for hours. But the fact remains that Trump is going to prosecute his semi-legal war whether we like it or not. My profound hope is that this war leads to not one, but two, regimes falling. It might: both the mullahs who rule Iran and the MAGAs who rule America are as politically weak as we’ve ever seen them, and this unpopular war, which was never sold to the American people, could topple one, or both. I’m giddy for either.
Trump may be able to prosecute his war in Iran, but that’s about all he can prosecute. In fact, it’s very possible that he never bothered to build a consensus to get Congress to authorize the war because, despite playing with marked cards, he can’t even get a high card (sorry, I was in Las Vegas last week).
Other than having the Department of Justice do nothing—the equivalent of quiet quitting—most things he has tried to have the Justice Department do, like prosecute his political enemies, have been abject failures. Both the case against former FBI Director Comey and the case against New York State Attorney General Letitia James have been dismissed. But the dysfunction goes beyond that.
The way Trump’s DOJ is handling the Epstein files is downright malpractice. They not only botched the disclosure—redacting the names of perpetrators but not victims, for example, and simply withholding incriminating documents about Trump, only to release them after appearing as suspicious as possible—but they are not actually investigating any of the allegations.
This is incredibly stupid. Under 18 U.S.C. § 3283, “No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child, or for ten years after the offense, whichever is longer.” That means, essentially, that there is no statute of limitations on the Epstein crimes.
It would have made a lot more sense, both politically and legally, for Trump’s DOJ to undertake investigations and prosecutions of everyone in the Epstein files who apparently committed a crime. They could then give them sweetheart plea deals. That would have solved two problems at once: defusing the political controversy and protecting the perps from actual punishment for their propensity to abuse young women.
Why is that a good idea? When this government changes, even if it remains conservative, you can bet the next DOJ is going to make a show of prosecuting these crimes. But instead of defusing this political and legal issue by actually dealing with it, Trump decided to try to distract us from it by . . . bombing Iran.
Regime change . . . the topic, indeed.
Keep thinking, keep building,
Jesse
Hi, and welcome to my newsletter! I’m Jesse Strauss, Your Fractional General Counsel. I’m a lawyer with a private practice based in New York City, helping clients in the United States and globally with their U.S. legal needs. My expertise spans various areas, including raising funding rounds, employment issues, negotiating master service agreements, intellectual property, compliance, legal process management, and dispute resolution. My focus is on founding and nurturing great companies from seed to exit. Discover more at Your Fractional GC and book a complimentary 30-minute consultation. You can also follow me on Threads @lawyerjesse1977, on BlueSky @lawyerjesse.bsky.social, subscribe to my Substack here (follow me on notes), and follow me on LinkedIn here.