Recently, a group of high profile attorneys and law professors formed a new organization—named Checks & Balances—intended to challenge what they perceive as wrongful behavior by the Trump Administration. I know some of the members of this group—some have been my friends for over three decades—and I have great respect for them.
I have seen statements by group members praising the Trump Administration’s efforts on judges and regulatory reform. Clearly, these are significant accomplishments from a conservative or libertarian perspective. There are also other accomplishments of the Administration, such as its Mideast policy—which has moved against ISIS, Palestinian recalcitrance, global discrimination against Israel, and a nuclear Iran by promoting an alliance of opponents, without entering into a major war.
So if there are significant accomplishments, which I might add far exceed some traditional Republican administrations in these areas, what is the cause for concern about the Trump Administration? I do not doubt that there are serious questions and criticisms to be asked about the Administration. But the problem is that there is so much hysteria about Trump from the media and some of his critics, it is hard to know what are the strongest complaints about him and his administration.
So what could Checks & Balances do that would be most valuable? I think that they should make the case why they believe that Trump is especially problematic. First, do their criticisms of Trump extend beyond his departure from historical norms governing the presidency and some of his extravagant statements? Clearly, Trump has departed from such norms. One can argue whether Trump’s behavior is the continuation of a trend from earlier presidents or represents a sharp departure from prior practices. And one can certainly be concerned about such behavior, just as one can be concerned by isolated statements, such as those involving his criticisms of birthright citizenship, that do not appear to result in policy change.
But is the main complaint about Trump or does the critique extend to more substantive matters? And if so, what are those substantive matters? I am genuinely curious as to whether the members of Checks & Balances believe that Trump’s behavior differs from traditional Republicans and if so, whether it is better or worse.
One issue that often comes up is the Mueller investigation. If that is their concern, then that will not be helpful. One can believe that the appointment of special counsel Mueller was justified, but it is a hard case to be made. For one, not much has been uncovered so far. But much more importantly, the investigation was not justified under traditional standards for appointing special counsels. The Mueller appointment was not for a criminal investigation but for a counterintelligence investigation. Thus, the appointment did not follow—indeed, it actually ignored—the Special Counsel regulation. In any event, despite the appearances created by president’s usual loose talk, neither Trump nor his agents have taken actions to restrict Mueller.
So what are the legitimate complaints? There could be many, such as Trump’s trade policy. But it would be helpful to see the complaints listed and developed in a sober way so that one could evaluate them. I regard myself as someone who should be Checks & Balances’ core audience – someone who shares their political principles, who is open to persuasive criticisms of the President.
But so far I have not really seen anything along these lines from the group (although I may have missed it – if so, please let me know). George Conway co-wrote an op-ed attacking the Whitaker appointment. I agree, at least under the original meaning of the Constitution, the appointment was unconstitutional. Indeed, I developed the theory 12 years ago. But so what? Presidents regularly do not follow the original meaning. Obama rarely did. And in this case, there is a long practice suggesting it is not unconstitutional. This is not the type of criticism that would justify the formation of their group.
So Checks & Balances, it is your move.