At the 2017 Federalist Society National Lawyers Convention, conservative and libertarian lawyers squeezed red stress balls that were adorned with the now-famous slogan: “But Gorsuch!” The Washington Examiner explained that the stress balls, distributed by the R Street Institute, would give relief to those “who seek reasons to remain hopeful amid Trump’s first year in office.” This meme has become a mantra: Everything is terrible, but at least we have judges. According to Politico Magazine, the anti-Trump tweets of George Conway (Kellyanne’s husband) “is seen as rebuking the silence of his fellow Federalist Society members—the elite, conservative lawyers who have generally chosen to give Trump a pass on his breaches of long-cherished legal norms and traditions in exchange for the gift of Supreme Court Justice Neil Gorsuch.” Bill Kristol agreed: “Having big-name conservative lawyers consistently rebuking Trump could have made a difference. Their silence is taken as acquiescence.” In the New York Times, David Leonhardt faults Paul Clement, Ted Olson, and other Federalist Society stalwarts who are apparently not “willing to take a little heat in defense of the American system of justice.” This post will explain one facet of that silence, with respect to what this blog has broadly labelled, L’Affaire Russe.
As a threshold matter, it is a mistake to view the Federalist Society as a monolithic entity that can take an official position on the Russia probe, or any issue for that matter. Indeed, the organization expressly states that it does not “take positions on legal or policy issues.” In April, the president of the American Constitution Society—which does take positions on legal and policy issues—asked the president of the Federalist Society to urge his members “to join in a united effort to avert a constitutional crisis relating to Special Counsel Robert S. Mueller’s investigation into Russian meddling in the 2016 presidential election.” I am certain that the ACS is aware of the Federalist Society’s opposition to taking such official positions, so I viewed this overture—announced in a press release—largely as a media ploy. And it worked. Reuters published a column, titled “Federalist Society is silent on liberal counterpart’s call for joint defense of Mueller probe.” After more than a decade of being a Federalist Society member, in which I’ve spoken at more than 100 of their events, not once has anyone at the organization ever told me what position to take. That’s not how the group works. Rather, the organization consists of thousands of members (including me) who hold a wide range of views that generally fall under the big tent of conservative or libertarian legal thought.
Therefore, the question is not why the Federalist Society as an organization has failed to fault Trump. The proper way to frame the question is why have Federalist Society members not faulted Trump.
Except it’s not true that Trump has escaped criticism. Before the election, I joined group of likeminded conservative and libertarian lawyers known as “Originalists Against Trump.” I do not regret joining this group, even though that decision has not inured to my benefit. Eighteen months into the administration, my criticisms have continued. The president’s attacks on judges and his own Justice Department are improper. Despite supporting the travel ban’s legality, I continue to oppose it on policy grounds. I feel much the same way about DACA—an important policy, but one that must be enacted by Congress, not by the pen-and-phone. I faulted the president’s unfortunate pardon of Joe Arpaio. Though I have filed briefs arguing that the president’s actions do not violate the emoluments clauses, I have stated in court pleadings that his “business activities raise ethical conflicts under modern good governance standards.” During an interview on Fox Business Network, I explained to the host that it would be a terrible idea for Trump to fire Rosenstein and others in his administration to end the Muller probe. I wrote on this blog that “Mueller’s firing would likely accelerate the end of the Trump administration.” I find his never-ending torrent of tweets—in which he insults and demeans people, the media, and his own government—to be beneath the dignity and honor of the presidency. Every time I receive an alert about a new tweet from @realDonaldTrump, I cringe. And so on. I suspect I am not alone in holding such views among conservative and libertarian lawyers.
Why, then, have other conservative and libertarian lawyers not been more vocal? I can think of several reasons. The first is a pragmatic rationale: People are under no obligation to voice their opinions on anything. Everyone is in a different position—professionally, morally, or otherwise—with different commitments. Whether a person wants to speak out is his or her personal decision, especially for those who lack the benefits of academic and other types of tenure. Furthermore, there is nothing wrong with keeping silent because of “but Gorsuch.” People order priorities differently. For people who value the courts highly, it is a rational tradeoff. The “Originalists Against Trump” stated that “we do not trust him” to “nominate qualified judicial candidates who will themselves be committed to the Constitution and the rule of law.” He has, without question, kept this promise. Furthermore, it is not only “but Gorsuch,” but “and Gorsuch.” Putting aside the reality-show drama in the White House, the conservative agenda is moving forward with respect to deregulation, foreign policy, health care, tax cuts, abortion policy, and countless other areas. There are many reasons why Trump is not being criticized from the right.
There is also an important constitutional dimension to the Mueller probe in particular that is often lost in current debates: Conservatives have been extolling Justice Scalia’s dissent in Morrison v. Olson for nearly three decades. Even SCOTUS-shortlister Judge Brett Kavanaugh, who drafted the Starr report, has seen the light. In 2016, he predicted that Scalia’s Morrison dissent would become a majority opinion. I suspect if we took a poll at the 2015 Federalist Society National Lawyers Convention—well before a President Trump was even imaginable—an overwhelming majority of attendees would have said that Morrison v. Olson was incorrectly decided. (George Conway, who was one of the fiercest supporters of the charges against President Clinton, may be in the minority.) I’d be willing to wager that a sizeable majority would have said that Humphrey’s Executor was wrong, and that we should go back to the rule in Myers v. United States. That is, every officer within the executive branch can be removed by the President, at will.
It is ironic that David Leonhardt faulted Ted Olson of all people for not speaking out about the Mueller probe, when it was Olson who lost to Morrison. Indeed, Olson wrote an op-ed that articulated what I had long viewed as part of the conservative catechism: The independent-counsel statute was unconstitutional. Without question, Robert Mueller has far more constraints on his autonomy then did Ken Starr, yet these two investigations share one important hallmark: to quote Justice Scalia’s Morrison dissent, the President is “deprive[d] … of substantial control over the prosecutory functions.” Under the extant regulations, the special counsel can only be removed for certain reasons and—in certain cases—can publicize his findings. That these restrictions fall far short of the protections afforded by the independent-counsel statute does not mean they are consistent with Justice Scalia’s dissent.
In my writings on whether President Trump could fire Mueller, I have worked from the presumption that Morrison was correct. But as a matter of first principles, the president should be able to fire anyone in the Justice Department, for any reason, or no reason at all. And, as I noted over a year ago, mere regulations should not be able to bind the president’s exercise of his own constitutional authority. Don’t forget that during the Bush administration, the notion of the unitary—or as some would say, imperial—presidency, loomed large. This position laid somewhat dormant, as President Obama was loath to invoke the unitary-executive theory, but it remained active on the right. With this perspective, Trump’s invective against Mueller and his team is unfortunate, but his perspective is supported by what many conservatives view as a correct application of the separation of powers: Mueller is an employee within the executive branch, who must be accountable to the president, and can be removed at will.
My colleague Benjamin Wittes tweeted that Conway faulted the Federalist Society for “its silence in the face of the violation of everything it stands for.” I respectfully disagree. This silence is largely a byproduct of how conservative and libertarian lawyers understand the separation of powers. Three decades ago, Justice Scalia acknowledged that the Constitution gives the president awesome power over his own wrongdoings:
Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.
Many conservative and libertarian lawyers who ascribe to Scalia’s vision of the separation of powers have long ago accepted that such exclusive power can be abused. For these reasons, I do not fault my colleagues on the right who view Trump as championing a constitutional principle they have long advocated, even if he has no actual concern for the constitutional principle he is advancing: that is, the separation of powers and the rule of law are being subverted by the Mueller probe itself, and not by President Trump’s attacks on the Mueller probe.
I also do not fault my colleagues who view Trump as an existential threat to the Republic. There are those on the left who always rejected the unitary vision of the executive. For them, Trump’s attacks on Mueller probe and on the Justice Department are inconsistent with the separation of powers and the rule of law. As I wrote earlier this year, the actions of the so-called legal resistance are “completely rational.” There are also lawyers on the right who have had second thoughts about the unitary-executive theory because of Trump’s excesses. (Perhaps George Conway is in this camp, though, as noted earlier, he was a leading advocate against Bill Clinton’s assertion of executive power in the 1990s.) All of these views, which are reached in good faith, are entitled to respect.
How you approach this divide reminds of the classic debate between Yanny and Laurel: The exact same facts about L’Affaire Russe can enter two sets of eye and ears, and, based on how one’s brain operates, completely different answers are reached. I view most constitutional debates through this same prism. It is largely futile to try to persuade one side or the other to shift. We are all guilty of motivated reasoning—all we can do is be cognizant of how and why the other side believes what it believes.
Cross-Posted at Lawfare