If there is one useful lesson to be derived in the Age of Trump, it’s this: Don’t let the laughing distract you from the real story. For instance, last year while we were all giggling about Donald Trump elevating a potential federal judge who didn’t know what a motion in limine was (it’s funny if you’re a lawyer!), the president and Mitch McConnell were quietly packing the courts with a record number of lifetime appointees. There’s a certain glazing dullness to these appointments, but they’ve now seated 29 federal appeals court judges, 53 district court judges, and two Supreme Court nominees, overwhelmingly represented by very young white males. We can chortle at a president who seems to believe that Cap’n Crunch and Tony the Tiger are swapping hats to vote illegally in Florida, but it doesn’t change the fact that all over the country, actual votes have been stolen and suppressed by government officials who believe some people should not have a say in their own democracy.
By the same token, you can chuckle all you want about Donald Trump’s new acting Attorney General Matt Whitaker’s addled legal notions; the career he’s constructed of long cons, short cons, and unpaid bills; and even his affinity for CrossFit, but while we’re laughing and tsk-ing, Whitaker is supervising (and perhaps even sharing details with the president about) every aspect of the Mueller probe with no promise of recusal and no mechanism for removal. We need to remember to take serious things seriously because, as former acting Solicitor General Neal Katyal told me last weekend on Amicus, if you care about checks and balances and the rule of law, the moment to be worried is right now.
I know, I know. Trump has gone from King Lear to King Kong to King of the Hill in the span of a week. But even in the fog of Melania, there are norms being eroded that may seem trivial, but they are anything but.
That brings us to Jeff Flake. Jeff Flake has broken the hearts of the Rule of Law community more times than anyone cares to remember. He has proclaimed to be the sane and lucid voice for civility, checks and balances, and constitutional norms in ways that at first thrill the heart, and ultimately dull the senses. If the Bill of Rights were a football, Jeff Flake would be the Lucy. Every time. And so when the senator from Arizona stood up Wednesday and threatened to block all judicial nominations unless his bipartisan bill protecting Robert Mueller was brought to a vote, it’s unsurprising that the near-universal response from Democrats was “feh.”
Senate Majority Leader Mitch McConnell, who is for bipartisanship so long as it benefits him, refused to allow a vote on the bipartisan protect-Mueller proposal and dismissed the legislation as “unnecessary.” Flake took to the floor to pledge that he would stymie “any of the 21 judicial nominees pending in the Judiciary Committee or the 32 judges awaiting confirmation on the Senate floor until … [the bill] is brought to the full Senate for a vote.” Whether or not McConnell can work around Flake’s obstruction is one question. Whether this time Flake plans to genuinely obstruct or simply perform obstruction as gauzy interpretive dance is another.
Flake’s critics are doubtful. CNN chief legal analyst Jeffrey Toobin put it bluntly Wednesday evening: “Is there anything more empty in American politics than a threat from Jeff Flake who has made his entire career by folding every time Mitch McConnell breathes hard?” Charles Pierce is similarly dubious: “We shall see if he backs that up by actually doing it, but he repeated that threat on the floor on Wednesday after McConnell killed the bill. Jeff Flake has nothing to lose, but that’s been true for a while.” (Flake did not run for re-election this year and will leave the Senate in January.) And nobody has expressed the near-universal sense that Flake is effectively all hat and no cattle better than New York Times columnist Jennifer Senior, who took to her paper on Tuesday—before Flake had tendered his threat to McConnell—to publicly state that she regretted her kind review of Flake’s book, Conscience of a Conservative. As Senior now sees it: “If Flake believed, all along, that Trump posed a genuine threat to democracy—that he is the least stable element on the periodic table of American presidents, with a half-life of 22 minutes and a terrifying potential to blow things up—then why did he slavishly follow the president’s desires at all? Why did he ever allow ideological ends to justify republic-endangering means?”
In the same vein, some progressive Trump critics were ambivalent about Wednesday’s news that a group of conservative legal stalwarts, led by George Conway (yes, that Conway), Tom Ridge, Peter Keisler, and others, has formed a group that will explicitly push back against unconstitutional and lawless actions by the Trump administration. The mission statement of Checks and Balances is a striking repudiation of the “Gorsuch was worth it” line advanced by Federalist Society leadership only a year earlier.
The group’s mission statement does not mince words: “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,” the statement says. “We believe these principles apply regardless of the party or persons in power. We believe in ‘a government of laws, not of men.’ ” As Conway told the New York Times’ Adam Liptak: “There’s a perception out there that conservative lawyers have essentially sold their souls for judges and regulatory reform. We just want to be a voice speaking out, and to encourage others to speak out.” Marisa Maleck, another founding member of the group, cited the firing of Jeff Sessions and stripping of Jim Acosta’s press credentials as recent actions she found alarming: “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 told CNBC. More than one legal observer on the left met the news with grumbling about “too little” and “too late” with a dripping side of “feh.” Some of us have, after all, been warning about Trump hoovering up more and more power for two years.
At the risk of being the world’s saddest version of Charlie Brown, I’d like to remind opponents of Trump that the repair of democracy will require the slow, systematic peeling off of those in power who were either muted in their criticism of the president or purely transactional in their support of him. As Matt Ford suggested in the New Republic, whatever their motives, the lawyers of Checks and Balances are doing important spadework in offering a much-needed and vocal counterargument to Trump’s increasingly alarming claims about being above the law. And Jeff Flake, whether he means to enforce it or not this time, is putting into words that which desperately needs to be put into words: Trump is gunning for the Mueller probe, he keeps saying that out loud, and Americans should be terrified. This isn’t comedy, it’s a slow-moving Saturday Night Massacre.
There is an important conversation to be had about whether the former spokesmen and bagmen for the Trump administration should be welcomed uncritically into the academy and the media. But this isn’t about Trump’s enablers and paid prevaricators. It’s about those who attempted to stay neutral or quiet or to hover above the fray, long after the rest of us had hit the panic button. Progressives can love Flake or hate Flake, but at some point, the Flakes and the Conways and the Ridges will be the only way to resist Trump with any real force. That they are making old arguments in fresh and urgent voices is a gift, not to be belittled.
Reasonable people will differ over whether Flake has been “complicit” or merely ineffectual. But what the conservative Trump resistance also brings to the table at this moment is seriousness and grave concern, and that matters a whole lot. Jeff Flake isn’t joking when he frames the crisis around the Mueller probe as a referendum on the rule of law. Marisa Maleck is absolutely correct when she argues that the threats against the Justice Department and the media are deadly dangerous. And just as some of the most important Trump critics in the media have come from the ranks of the conservative movement—including Max Boot, Jennifer Rubin, and others—it will soon be true that some of the most important legal critics of Trump and Trumpism will be the conservative lawyers who are now standing up and making arguments progressive lawyers have made for three years. It has long been a mystery to me why the Jeff Flakes and the Ben Sasses of this moment have chosen the path of words over action, when it would seemingly take so very little to be a hero. But it’s not worth it to let that confusion obscure when they stop talking and start acting.
What Flake has done again this week, and what Conway and his allies have done this week, is actually profoundly consequential in an era in which taking anything seriously is a remarkable feat. (It’s worth noting that Chuck Grassley appears to be taking Flake quite seriously.) To make the case, in sober terms, that truth and law matter may seem boring and pointless as the White House melts down and Sarah Huckabee Sanders hatches another nest full of baby lies. But the exhausted, cynical, and sometimes too readily amused Resistance should meet the conservative Trumpers where they are, because they are doing the work of democracy, soberly and carefully. It isn’t “too late.” We’re closing in on that faster than we think. We should accept all the help we’re offered, even if Lucy ends up pulling the football away again.
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