Top lawyers are trying to rally fellow conservatives to speak out against Trump

Tucker Higgins

The Federalist Society's annual convention has been called the "Super Bowl" for lawyers.

This year, following the confirmation of Justice Brett Kavanaugh to the U.S. Supreme Court, yet another member of the group's ranks sent to the highest court in the land, it might have been expected to be a celebration of Kavanaugh and the president who appointed him.

But just days before the convention is set to begin at The Mayflower Hotel in Washington, some of its most prominent members have banded together to form "Checks and Balances," a slate of like-minded attorneys who are encouraging their fellow conservatives to speak out against what they see as President Donald Trump 's undermining of the rule of law.

In a mission statement dated Tuesday, the group said it stands for "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."

The group includes more than a dozen conservative and libertarian lawyers, many of whom who have held high-profile positions in Republican presidential administrations. The group's members have been influential in shaping conservative legal thought.

Among its founding signatories are Tom Ridge, the former Pennsylvania governor who served as secretary of the Department of Homeland Security under George W. Bush; George Conway, a conservative attorney who is married to Trump's senior counselor Kellyanne Conway; Peter Keisler, the former head of the Department of Justice's Civil Division; and Lori Meyer, an attorney married to Eugene Meyer, the president of the Federalist Society.

Neither the White House nor the Federalist Society immediately responded to a requests for comment.


'You can't do that'

In interviews Wednesday, members of the group expressed the hope that more conservatives would join them. They said that they hoped to lower the barriers to doing so by attaching their names, in public, to a declaration sticking up for the rule of law.

"We felt the need to be more activist, and what that activism will be is the expression of our views, when asked, and when able, to get like-minded people to join us in an attempt to influence a government that claims to be conservative," said Stuart Gerson, an attorney who held senior roles in the George H.W. Bush and Bill Clinton administrations and as a transition advisor to George W. Bush.

Marisa Maleck, a former law clerk to conservative Justice Clarence Thomas, said she was dismayed by the lack of criticism the president received from members of his own party during his first two years in office.

Maleck cited the president's firing of Attorney General Jeff Sessions and his decision to strip the press pass from CNN's chief White House correspondent Jim Acosta as recent actions she opposed.

"The president is taking on more and more power, and people don't know any better if you don't have legal experts speaking up and saying: This is entirely unconstitutional, and you can't do that," she said.

The Federalist Society itself does not take official positions on candidates for office, though its members have been instrumental in guiding the Trump administration's selection of judges. At its last annual convention, Justice Neil Gorsuch was a featured speaker.

Some members of the group have staked out positions at odds with the president.

Conway has been vocal on Twitter and in the media, recently writing an opinion article in The New York Times, co-bylined by the liberal attorney Neal Katyal, arguing that Trump's appointment of Matthew Whitaker as acting attorney general is unconstitutional. (The Justice Department's Office of Legal Counsel signed off on Whitaker's appointment .)

John Bellinger, another member of the group and a former top National Security Council lawyer, was one of the first former Republican administration officials to publicly denounce Trump.

Turning some heads

The creation of Checks and Balances, and the prominence of its members, is expected to cause a bit of a ruckus at this weekend's gathering of the conservative movement's top legal minds.

"These and other names will turn heads," Benjamin Wittes, co-founder of the national security blog Lawfare and a senior fellow at the Brookings Institution, wrote in a post on Twitter Wednesday.

That's the point, its members say. Jonathan Adler, the director of Case Western Law School's Center for Business Law and Regulation, said he hoped the group would "create space" for conservatives who were reluctant to criticize the administration to do so.

"Our hope and belief is that there are a lot more people who share these concerns than thus far have been known to raise them publicly," he said. "When lots of people who generally share the same legal philosophy about the Constitution are gathering, that's an obvious time to encourage people to be more vocal and more active."

Maleck said the group was already receiving emails from lawyers hoping to join. They would be welcome to, she said.

"If there is a lash, I expect it will be positive," Gerson said, about the prospects for a conservative backlash against the group. "I think a lot of people agree with us, particularly people in our profession, at least on the right, who have been quiet, and who will now be more vocal."

Members expressed varying levels of disapproval of the president and his policies. Most, for instance, support his efficient appointments of judges to the federal bench, as well as his two successful Supreme Court nominations. Conservative attorneys generally favor less business regulation than their liberal colleagues, consistent with Trump's deregulatory agenda.

Adler noted also that Checks and Balances is not a rebuke of the Federalist Society, which he said had historically served as a forum for debates on legal matters. Rather, the group is about standing up for principles that transcend partisanship, he said. The group's mission statement does not mention Trump by name, a nod to the timelessness of the values it champions, Adler noted.

And he pointed to some of the initial criticism the new group faced as an indicator of its importance at this particular national moment.

"You see on Twitter this morning people are saying we must be being paid off by some shadowy billionaire," Adler said. "There are people who will question your motivations. That's a symptom of the hyper partisanship and tribalism that the country is infected with right now."