My favorite part of this Carville-and-Matalin routine that the Conways are doing (although they’re both Republicans) is how Kellyanne feigns outrage every time someone confronts her about George’s digs at her boss. It’s sexist, she insists. Yeah? If George Conway were White House counsel and Republican strategist Kellyanne Conway was making occasional Twitter wisecracks implying that his boss is a joke who needs to stop whining about Russiagate, you don’t think George might be asked about it by the media? For cripes sake.
To give you a sense of how deep George Conway’s antagonism to Trump goes, note two things upfront about this piece. First, it begins with him dunking on Trump for a misspelling. And second, of all the outlets in America he could have shopped it to, he chose Lawfare — which is edited by James Comey’s buddy Benjamin Wittes, a hardcore Trump antagonist himself.
You should read Conway’s piece for yourself, as it isn’t long and he writes accessibly. A taste, addressing the idea that the special counsel is unconstitutional for the same reasons Justice Scalia found the independent counsel unconstitutional in his famous dissent in Morrison v. Olson:
[W]hat happened in Morrison was that Congress passed a statute that took prosecutorial power—purely executive power—away from, and out of, the executive branch. Cue Justice Scalia’s dissent: “the statute before us deprives the President of exclusive control over that quintessentially executive activity” and “[t]he Court does not, and could not possibly, assert that it does not.” “[T]he independent counsel exercises executive power free from the President’s control.” “[T]he independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President).” Despite all that, the majority in Morrison did not think the old independent counsel law stripped “too much” executive power away from the executive.
Contrast that with the situation here—where not even Justice Scalia would think any power has been removed from the executive. Here there was no statute imposed by Congress, just a regulation—a regulation promulgated by and within the executive branch. Specifically, a Justice Department regulation promulgated by the attorney general, an officer fireable at will by the president. And what does this regulation do? It simply divides work among lawyers within the Department of Justice—within the executive branch. It surely doesn’t remove any executive power from the executive branch.
He takes on various arguments against the constitutionality of Mueller’s appointment. The special counsel is a “principal officer” who can only be nominated by the president with Senate consent? Wrong. The special counsel has been unsupervised at the DOJ by a superior officer? Wrong. The special counsel offends separation of powers under the Constitution? Way wrong. (That’s what Conway is discussing in the excerpt above.) Much hay will be made by the media tonight and tomorrow over the spectacle of Kellyanne’s better half answering the bell on behalf of Robert Mueller, but while that analysis is irresistible, I think it misses a key part of what drove Conway to do this. Here’s his closing paragraph, which provides a hint:
A final observation: It isn’t very surprising to see the president tweet a meritless legal position, because, as a non-lawyer, he wouldn’t know the difference between a good one and a bad one. And there is absolutely nothing wrong with lawyers making inventive and novel arguments on behalf of their clients, or on behalf of causes or people they support, if the arguments are well-grounded in law and fact, even if the arguments ultimately turn out to be wrong. But the “constitutional” arguments made against the special counsel do not meet that standard and had little more rigor than the tweet that promoted them. Such a lack of rigor, sadly, has been a disturbing trend in much of the politically charged public discourse about the law lately, and one that lawyers—regardless of their politics—owe a duty to abjure.
It’s crucially important to understand that the arguments Conway’s responding to in his piece don’t come from an assortment of pro-Trump lawyers and pundits, they come from one person — law professor Steven Calabresi. Who’s Steven Calabresi? Why, a co-founder of the Federalist Society, the most influential conservative legal organization in America. Leonard Leo, who helped run the search for Scalia’s replacement on the Court, is the group’s executive vice president. Virtually every right-wing legal luminary since the early 1980s is connected to it. As it happens, George Conway was the president of the Federalist Society chapter at Yale Law when he was enrolled there in the mid 1980s, just a few years after Calabresi co-founded the group. He’s not quite an original member like Calabresi is, but given his stature in the legal world (he was a shortlister to be Trump’s solicitor general) and his FedSoc pedigree at Yale, he might as well be.
That is to say, cliche though it may be, to some degree this is a battle between Conway and Calabresi for the soul of the Federalist Society. I strongly recommend reading this Politico story from last month, published the last time Conway let off some steam about Trump on Twitter, describing how unhappy he and other anti-Trump righties are with the group’s silence/complicity in the new MAGA direction of the GOP. Conway’s parting shot above lamenting the “disturbing” lack of rigor in politicized legal analysis lately can, I think, only be interpreted as him accusing Calabresi and by extension the FedSoc of being in the tank for Trump, to the point where they’ll argue in bad faith against Mueller’s authority simply to provide cover for the president. He can handle watching Republican leaders and Republican congressmen and Republican rank-and-file voters and, ah, his beloved wife shilling for Trump endlessly, but when Steven Calabresi stains the good name of the Federalist Society by farting out anti-Mueller sophistry, he’s had all he can stands, he can’t stands no more. Bear that in mind tomorrow as the media feeding frenzy turns this into a “George vs. Kellyanne” story. It isn’t really. It’s George vs. the Federalist Society.