“There is a deep-seated concern and uneasiness in conservative legal circles with the president’s attacks on our institutions, including the press and the Department of Justice, and a belief that conservative lawyers are not speaking up enough,” John B. Bellinger, top legal adviser for the State Department and National Security Council under President George W. Bush, told The Post.
This effort was intended to stimulate discussion among conservative lawyers around the country, particularly as the Federalist Society gathers for its annual conference in Washington on Thursday.
Having three functioning branches of government is the healthiest way for a democracy to work, said Marisa Maleck, a former law clerk to Supreme Court Justice Clarence Thomas. Since Trump took office, he has repeatedly attempted to consolidate the power of those branches himself, she said.
“The worst part about it is that he normalizes it. Most people don’t realize what he’s doing poses a threat to a constitutional democracy,” she said.
In a mission statement released Tuesday, the group wrote: “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 party or persons in power. We believe in ‘a government of laws, not of men.’”
The Checks and Balances roster also includes, among others, Tom Ridge, a former Pennsylvania governor and George W. Bush administration secretary of homeland security; professors Orinn Kerr and Jonathan Adler; Peter D. Keisler, acting attorney general in the Bush administration; and attorney Lori S. Meyer, who is married to Federalist Society President Eugene B. Meyer.
Most, if not all, are active members of the Federalist Society and believe in limited judicial function, Paul Rosenzweig, a senior fellow at the R Street Institute and a former official in George W. Bush’s Department of Homeland Security, told The Post.
Rosenzweig said the moment that triggered each person to join was different.
For him, it was Charlottesville and Trump’s undermining of the free press. “The idea of bombs being sent to CNN and embracing a political representative who has actually assaulted the press doesn’t sit well with me,” he said, referencing Trump’s praise of Rep. Greg Gianforte (R-Mont.), who assaulted a journalist last year. “All of us believe in conservative legal principles and in the need to stand up for them no matter who is the president.”
Adler cited his growing concern about how partisan lines are drawn. “In the current hyperpartisan environment, people are finding it challenging to criticize those seen as on their side,” he said.
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.
Lawyer Alan Charles Raul, a top legal official in the Ronald Reagan and both Bush administrations, said that what makes America great are constitutional values and rule-of-law norms.
“We can’t just count on that remaining strong and a shared value for all Americans if we don’t speak up for them and show concern when we see them being challenged,” he said.
Group members envision Checks and Balances taking on several concerns with the Trump administration. They include respect for the rule of law, constitutional principles that support freedom of expression, due process, and not politicizing any particular criminal prosecution.
They are unified in hoping that the group will provoke discussion among lawyers to ensure that attacks on American institutions do not become normal across the country.
Maleck said that this is not the way American democracy should be functioning.
“It reminds me of the Edmund Burke quote, ‘The only thing necessary for the triumph of evil is for good men to do nothing,’ ” she said. “Before Trump does lasting damage, someone needs to say that enough is enough. It’s important that it comes from people in his own party.”