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Leo’s Lane: Balls and Strikes versus Checks and Balances

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Last week, a group of Federalist Society members kicked off the annual meeting by announcing a new group, calling itself Checks and Balances, led by Kellyanne Conway’s spouse, George.

On its face, it’s not clear what function the group will have, aside from focusing even more attention on George and Kellyanne’s differing views on the President. I assume, however, the statement the 14 lawyers signed is meant to embarrass other conservative lawyers into remembering the principles they lay out in their statement.

We believe in the rule of law, the power of truth, the independence of the criminal justice system, the imperative of individual rights, and the necessity of civil discourse. We believe these principles apply regardless of the part of persons in power. We believe in a “a government of laws, not of men.”

We believe in the Constitution. We believe in free speech, a free press, separation of powers, and limited government. We have faith in the resiliency of the American experiment.

That said, I want to look at a few details of timing and intent.

The WaPo has an article that describes why some of the signers joined the group. Attacks on DOJ, Trump’s cultivation of racists, and attacks on the free press.

As to Conway, though, it focuses on the appointment of Matt Whitaker (though also includes Trump’s claim to want to end birthright citizenship).

Other members have pointed to Trump’s ouster of Jeff Sessions as attorney general and installation of Matthew G. Whitaker as acting attorney general.

Conway, the group organizer, said, “There wasn’t any one thing; it’s a long series of events that made me think that a group like this could do some good.”

Conway has authored a series of articles attacking Trump’s politics, most recently an opinion piece in the New York Times that called Whitaker’s appointment unconstitutional.

“It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid,” Conway wrote. He similarly called the president’s plan to end birthright citizenship unconstitutional.

That’s interesting given the role multiple NYT stories have described Federalist Society Executive Vice President Leonard Leo had in the hiring of Whitaker. After the NYT almost got Rod Rosenstein fired (probably relying at least in part on Whitaker as a source), it described Leo recommending Whitaker to be Sessions’ Chief of Staff back in 2017.

Leonard Leo, the influential head of the conservative legal organization the Federalist Society who has taken leaves from the role to periodically advise the president since the transition, recommended Mr. Whitaker for his job with Mr. Sessions, according to a person briefed on the job search.

[snip]

“He has the trust and confidence of any number of people within the Justice Department and within the law enforcement community, but also the White House,” Mr. Leo said of Mr. Whitaker.

Installing Whitaker as Chief of Staff last year is one of the reasons Whitaker’s appointment would be legal under the Vacancies Reform Act (though the appointment’s legality is still very much under debate), because it meant he had been in a senior position at DOJ long enough to qualify. And hyping Whitaker at that moment was a key step in prepping his installation after Sessions’ eventual firing.

NYT emphasized again, once Whitaker had been installed, Leo’s role in his installation.

At this point, let me take a detour. Most of the lawyers who signed onto Checks and Balances are thrilled with the way Trump has been packing the court with conservative judges. Which would mean, by extension, they’re thrilled with Leo’s role in the Administration (indeed, in all recent Republican administrations) for the way he has provided the Executive branch a steady supply of vetted conservatives to get approved for lifetime appointments. Conway himself has said Trump “deserves a tremendous amount of credit for that. I’ll be the first to clap my hands for it.”

Yet, in the NYT story on the group, Conway suggested that Republicans were so happy with Trump’s success in packing the courts that they overlooked other things like rule of law.

Mr. Conway, who has long been a member of and contributor to the Federalist Society, said he had nothing but admiration for its work. But he added that some conservative lawyers, pleased with Mr. Trump’s record on judicial nominations and deregulation, have been wary of criticizing him in other areas, as when he attacks the Justice Department and the news media.

“There’s a perception out there that conservative lawyers have essentially sold their souls for judges and regulatory reform,” Mr. Conway said. “We just want to be a voice speaking out, and to encourage others to speak out.”

In championing Whitaker, Leo has stepped beyond his traditional role — vetting and supporting judicial candidates — into a different one, which might either be judged as interfering in DOJ’s operations or, more alarmingly and accurately, helping the President (who has succeeded so well at packing the courts) undermine a criminal investigation into his own conduct.

Leonard Leo has stepped outside his lane. And George Conway, at least, is pushing back.

And that’s why I find Leo’s response to the group so interesting. He gave Axios a screed of bullet points talking about how offended he is by the move.

  • “I find the underlying premise of the group rather offensive,” Leo told me. “The idea that somehow they need to have this voice because conservatives are somehow afraid to talk about the rule of law during the Trump administration.”
  • “And my response to that is, no, people aren’t afraid, many people just don’t agree that there’s a constitutional crisis and don’t agree with the people who have signed up with this group.”

Several of those bullet point screeds focused on the Jeff Sessions’ firing.

  • “I measure a president’s sensitivity to the rule of law by his actions, not his off-the-cuff comments, tweets or statements. And the president has obviously had lots of criticisms about former Attorney General Sessions and about the department, but at the end of the day, he hasn’t acted upon those criticisms.
  • “He’s allowed the department to have an awful lot of freedom and independence. … He can say what he wants to say, but at the end of the day, words don’t threaten the rule of law, actions do. I’ve been to 48 countries around the world. I know a constitutional crisis, and I know what a rule of law crisis is. Lots of countries have them. This country doesn’t right now.”

Leo seems to be having fun playing DOJ kingmaker, on top of the great success he has had playing judicial kingmaker under Trump. But it seems at least some conservatives don’t believe that’s his role to play.

Update: I asked Conway about this and got a response after the post was published. He says this is not about Leo at all.

It’s a response to Trump and the need for conservative lawyers generally to say something about him. It’s got nothing to do with Leonard.

Dear Lindsey: Not Even Trump Gives a Shit What You Think about the Whitaker Appointment

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About the most competent thing Trump managed with his ham-handed roll out of a hatchet man to oversee the Mueller investigation was to pick someone with close ties to Senate Judiciary Chair Chuck Grassley. Matt Whitaker has driven all around Iowa with Grassley.

And somehow, Whitaker managed to have Gary Barnett, whose Linked In profile says he still works as Jeff Flake’s Chief Counsel, installed as his new Chief of Staff in time to attend Whitaker’s takeover strategy huddle, while Sessions huddled with Senate confirmed officials.

So whatever else he is or is not, Whitaker is certainly well wired with one of the committees that would have oversight on his actions.

Perhaps that’s why Lindsey Graham and CBS Face the Nation thought he’d be a good guest to opine that everything pertaining to Whitaker’s appointment is hunky dory.

Graham told “Face the Nation” host Margaret Brennan on Sunday he believes the acting attorney general was “appointed appropriately” and “legally,” and he’s “confident” Whitaker won’t interfere in Mueller’s ongoing investigation.

“I talked with Matt yesterday,” Graham said. “I’m going to meet with him next week when we get our schedules aligned here. I think he was appropriately appointed legally. I don’t think he has to recuse himself. I am confident the Mueller investigation will be allowed to come to a good solid conclusion, that there’ll be no political influence put on Mr. Mueller by Mr. Whitaker to do anything other than Mr. Mueller’s job. I’m confident that Mr. Mueller will be allowed to do his job without interference.”

To be clear: I’m not minimizing the degree to which Trump has eliminated one possible source of resistance to his hatchet man plan, by picking someone wired into SJC (and backed vocally by Leonard Leo, since Republican SJC members appear to answer to him).

But by picking Whitaker, Trump has affirmatively told the Senate they — and the professionals for whom they have spent the time to advise and consent — are expendable. After all, the sole reason to appoint Whitaker rather than rely on normal succession is to prevent Rosenstein from having oversight of investigations into Trump.

More importantly, while SJC could have a hearing and Lindsey promises he’ll meet with Whitaker, none of that will have an immediate effect. SJC has absolutely no way to prevent Whitaker from burning up all the norms critical to a functioning DOJ, including recusal where it clearly is called for. There’s not even a way to prevent Whitaker from trumping up some charge and firing Mueller before any such meeting happens.

And it’s not SJC’s place to judge if Whitaker’s appointment is illegal. That role belongs to OLC (whose head, Steven Engel, has already been in at least one discussion about whether it is constitutional) and the Courts. If the question gets to the latter, SJC is not among the leading entities that might have standing to challenge it.

Having Lindsey’s seal of approval might make it easier for Whitaker to last out the two months or so until Democrats take the House. But that will have zero role in whether Whitaker blows up the Constitution.

Lindsey (and CBS) think he matters here. That’s quaint.

In Defending His Whitaker Pick, Trump Attempts to Placate Both Republicans and Lawyers

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President Trump flew all the way to Paris to (as far as we know) sit in the US Ambassador’s residence rather than attend the World War I remembrance he had flown all that way for. The stated reason was weather — basically some light drizzle in 50 degree temperatures.

I’m reminded that the other most prominent time Trump inexplicably blew off a high profile international event — when he had Ivanka sit in for him at the G-20 in July 2017 — he used the time instead scrambling with aides about how to craft a story about the June 9 meeting.

Given the way the Matt Whitaker appointment is blowing up — on top of persistent questions about the legality of the appointment, stories about the criminal investigation into his firm, (sketchy) claims that the White House knew nothing about his comments or past when they picked him, and additional reports of Whitaker’s radical legal belief, including that states can nullify federal law — I suspect he may similarly be huddled somewhere trying to prevent the Whitaker move from making his plight worse than it already was. (Though he’s demonstrably also working the phones in hopes of squeezing an extra Senate seat out of the process.)

Which is why I’m interested in the two tweets Trump made on the topic last night.

First, while also affirming his qualifications, Trump claimed (falsely) that he didn’t know Whitaker.

Yes, his claims here are narrower than the ones already debunked by his statements on Fox News the last time he tried to install Whitaker. He now admits to knowing Whitaker. But he falsely pretends that Sessions, not the White House, picked Whitaker. And he suggests, incorrectly, that he and others at the White House (including, per the NYT, Don McGahn when he was looking for an attack dog to work Trump’s defense) didn’t have direct contact with Whitaker.

President Trump first noticed Matthew G. Whitaker on CNN in the summer of 2017 and liked what he saw — a partisan defender who insisted there was no collusion between Russia and the Trump campaign. So that July, the White House counsel, Donald F. McGahn II, interviewed Mr. Whitaker about joining the president’s team as a legal attack dog against the special counsel, Robert S. Mueller III.

[snip]

The decision to fire Mr. Sessions and replace him with Mr. Whitaker had been in the works since September, when the president began asking friends and associates if they thought it would be a good idea, according to people familiar with the discussions.

The goal was not unlike the first time the White House considered hiring Mr. Whitaker. As attorney general, he could wind down Mr. Mueller’s inquiry like the president wanted.

Mr. McGahn, for one, was a big proponent of the idea. So was Leonard A. Leo, the executive vice president of the Federalist Society who regularly advises Mr. Trump on judges and other legal matters. Mr. Whitaker had also developed a strong rapport with John F. Kelly, the White House chief of staff. Nick Ayers, Vice President Mike Pence’s chief of staff, was a fan, too.

A team that has spent over a year claiming intermittently that Robert Mueller has a conflict because he interviewed to be FBI Director the day before he got named Special Counsel has made a guy who interviewed to be part of his defense team Attorney General.

All this creates an overwhelming appearance of a conflict, one DOJ’s ethical advisors — if they get the opportunity — would surely say disqualifies Whitaker from overseeing the Russian investigation.

So Trump, with his first tweet, is making false claims to try to deny these conflicts. It’s an appeal to lawyers — ethics lawyers at DOJ, constitutional lawyers questioning the legality of the appointment, and probably Mueller’s lawyers, who’ve been Hoovering up evidence relating to this latest obstruction of justice. This is the kind of performance tweeting Trump does all the time. It has no legal value — the lawyers he’s trying to influence will instead work with actual evidence — but it might lead his supporters to overlook egregious conflicts.

I’m more interested in his second tweet, posted 12 minutes later, touting that Republicans — most who worked or fought campaigns with him in IA — think highly of him.

Along with selling lawyers a lie, it seems, Trump feels the need to assure fellow Republicans (in the wake of losing many suburban women voters in part because of the Brett Kavanaugh confirmation process) that it will be worth fighting for Whitaker. Sure, Iowa politicians matter for anyone thinking of running for office. It definitely helps that the Chair of the Senate Judiciary Committee has driven to all Iowa’s counties with Whitaker.

But the key validator here, of course, is Leonard Leo, who has been pushing Whitaker as part of a defense strategy. That is, Leo is not (yet) pushing Whitaker to be a judge, though I think it likely that’s how he expects to be paid off, which makes Leo’s involvement even more suspect. For now, though, Leo is instead pushing Whitaker to help wind down the Mueller probe.

And Trump wants fellow Republicans, who just got shellacked in the House and may not even extend their advantage in the Senate, to risk political capital to defend Whitaker, all the while blowing up a half century of conservative beliefs about appointments.

Yet, even with these two bids to placate two different audiences about the Whitaker move (and all the related bullshit about not knowing what a hack Whitaker is), Trump simply doesn’t address all the glaring problems with Whitaker, starting with the question about whether the appointment is even legal.

It’s always a mistake to underestimate Trump’s survival ability, and it may be that he’ll find a way to persuade the two audiences he’s trying to reassure that Whitaker is worth the risk.

But these tweets suggest a heavy-handed move he probably imagined would bring him salvation has just added to his headaches.