These anti-Trump lawyers are looking beyond Trump to a wider threat

A new movement hopes to counter the threat posed by not just a second term of a Trump presidency, but the authoritarian movement the ex-president has made the centre of GOP politics and legal thought

Andrew Feinberg
Friday 10 November 2023 01:18
Trump's Testimony Spawns Courtroom Shouting Match

Before George Conway was a semi-regular fixture on cable news shows for his commentary about Donald Trump’s legal troubles, a contributing columnist at The Washington Post or the author of a feature-length story in The Atlantic questioning the mental competency of the then-President of the United States, he played a not-so-insignificant role in another movement against an American president.

In the early 1990s, the Yale Law School graduate was one of a small team of volunteer litigators who assisted a woman named Paula Jones in pursuing a sexual harassment lawsuit against then-president Bill Clinton all the way to the Supreme Court, where the case of Clinton v Jones established that a president was not immune from lawsuits arising out of conduct that took place before he took office.

In the intervening decades between those heady days leading to just the second presidential impeachment in US history and the tumultuous presidency of Donald Trump, Conway and many of the people he surrounded himself with during the Clinton years went on to become pillars of the conservative legal movement and upstanding members of a set in Republican high society that has reshaped the federal judiciary.

But on Wednesday, the former Federalist Society board member stood in a basement at the Ritz-Carlton in Washington to explain why he and a group of Bush and Reagan administration alumni were launching a new legal movement which they hope will counter the threat posed by not just a second term of a Donald Trump presidency, but the authoritarian movement Trump has made the centre of GOP politics and legal thought.

Conway explained how he’d founded a group, known as Checks and Balances, to push back on Trump’s criticism of his own Department of Justice during the early years of his presidency, but he also commented that he and his compatriots “could not have foreseen some of the things that we’ve seen over the last few years” — namely an attempted self-coup by the ex-president, or the spectre of that same former president running to reclaim his office while simultaneously fighting more than 90 felony counts pending in four separate criminal courts.

Now, Trump is actively threatening to use a second term to punish his enemies, real or perceived, and to free criminals who committed crimes on his behalf during the January 6 attack on the Capitol.

But Conway said the group that is supplanting Checks and Balances — a group he and the other co-founders are calling the Society for the Rule of Law — is necessary because the threat posed by Trump and his Maga movement is “no longer about one deranged individual or his prior or future, God forbid , administration”.

“It's about an infectious disease that is affecting the entire body politic and the political system that we have that the framers created for us,” he said.

What followed his remarks over the next two hours was a parade of luminaries from what used to be the core of the GOP legal establishment.

There was J Michael Luttig, an ex-Fourth Circuit appellate judge who was once a bete noire in liberal circles in part for a 2005 opinion which upheld the George W Bush administration’s designation of an American captured on American soil as an “enemy combatant” in the War on Terror.

Luttig, who was twice short-listed for the Supreme Court during the Bush administration, became a bit of a celebrity in liberal circles after he famously authored a viral Twitter thread rejecting the idea that then-vice president Mike Pence could unilaterally reject certification of Joe Biden’s 2020 election victory, later testifying about his advice to Pence during the House January 6 select committee’s hearings in 2022.

Now, nearly two decades removed from his time on the federal bench, he revisited his warning to that House panel that American democracy had stood “on a knife’s edge” during the early days in January 2021.

“Today it is teetering on that knife's edge, which is to say that American democracy is in greater peril today than it's ever been in American history,” he said, adding shortly after that “the explanation for that escalation in peril” was Trump’s persistence as the preeminent figure in GOP politics.

Another Republican luminary turned apostate, ex-Virginia congresswoman Barbara Comstock, recalled how she had served in the George W Bush-era Justice Department when it was run by then-Attorney General John Ashcroft, a man known as such a doctrinaire social conservative that he was accused of having ordered the covering of a statue in the department’s foyer, Spirit of Justice, because it depicted a not-blindfolded Lady Justice with one breast bare.

She noted that given Ashcroft’s reputation as a civil libertarian, Trump would probably find the controversial top prosecutor “squishy”.

As an observer of Republican politics over the Trump years, I’ve never been surprised to see once-mainstream Republicans, some of whom had played key roles in episodes that have so tormented liberals during the few decades, speak out.

It’s why Trump and his inner circle are actively eschewing the old Federalist Society networks in planning for a second term, in favour of lawyers more inclined towards his authoritarian designs.

These new founders of the Rule of Law society made the point in their remarks that the old school conservative legal movement never really stood up to the Trumpian excesses, save for a few notable examples and a remarkable run of judicial opinions rejecting Trump’s effort to overturn the election.

They each expressed hope that they will be able to use this new group to plant seeds of respect for the rule of law throughout the legal profession in a way that will eradicate what Conway described as an “infectious disease” from the bar.

But with some courts already rejecting some efforts to keep Trump off ballots and other courts indulging his efforts to delay his various criminal trials until after the election, I fear that their latest effort will be too little, too late.

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