Tweet Share Share Comment On Sunday, the Washington Post reported on Donald Trump’s plans to turn the Department of Justice into a department of “revenge” targeting perceived adversaries if he retakes the White House in next year’s election, as well as a proposal to invoke the Insurrection Act against any protesting citizenry. Given recent polls showing Trump practically sweeping the key swing states in a hypothetical reelection matchup with President Joe Biden, the Post reporting reads as an ominous premonition.
The Post report builds on last week’s chilling reporting in the New York Times about the lawyers who would work for a second Trump administration. All of this portends a new threat against the U.S. legal system. Trump’s potential revenge crew includes lawyers such as Jeffrey Clark, the U.S. Department of Justice official during Trump’s first term who wanted to help Trump overturn his 2020 election loss by getting DOJ to falsely claim there was election fraud in Georgia and who is now under indictment for racketeering along with Trump and 16 others in that same state. The Times reported, however, that Trump World has soured on right-wing Federalist Society lawyers for being “squishes” who showed insufficient fealty to Trump’s personal interests the last time around. The reporting indicated that there would be no place for these non-loyalists next time.
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This apparent rejection of FedSoc lawyers is a silver lining that is easy to miss amid justified concern about the rule of the law in January 2025. It gives me a bit more confidence that the legal system could remain steadfast against the most significant forms of illegality by a second Trump administration.
Let me begin with the obvious. There are people within the Federalist Society orbit who have acted in badly antidemocratic ways. As Dahlia Lithwick and I have chronicled, Leonard Leo, the brains behind FedSoc and a host of groups working to transform the American legal system in a much more conservative direction, started something called the “Honest Elections Project” that aims to make voting and voter registration harder in the name of stamping out phantom voter fraud. Federalist Society–affiliated lawyers and judges pushed an aggressive version of the “independent state legislature” theory that would have, among other things, prevented state supreme courts from applying state constitutional voting rights protections in federal elections. (The Supreme Court rejected that version of the theory last year, even while retaining great power to second-guess those state courts.) And most famously, Leo worked to boost Trump’s credibility among conservatives by helping to hand-pick Supreme Court nominees that made many Republicans feel that the Faustian bargain with Trump was worth it.
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Read More But we should also remember that when Trump was trying to overturn the results of the 2020 election through flimsy legal arguments, many people in the Federalist Society orbit courageously stood up for the rule of law, or at least refused to be complicit in bringing about its collapse. Conservative elite law firms like Jones Day did not get involved in any of the absurd “Kraken” lawsuits; Trump was left with lawyers like Rudy Giuliani, Sidney Powell, and Jenna Ellis (the latter two recently pleaded guilty to election subversion in relation to post-2020 election activities in Georgia). U.S. Court of Appeals for the 3rd Circuit judge, Trump appointee, and noted Federalist Society member Stephanos Bibas stood up for the rule of law in soundly rejecting a Trump lawsuit out of Pennsylvania. In that case, Judge Bibas declared:
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Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here. … Voters, not lawyers, choose the President. Ballots, not briefs, decide elections.
Not a single justice on the Supreme Court expressed support on the merits for Texas Attorney General Ken Paxton’s outrageous suit on behalf of his state to throw out Electoral College votes for four other states. Indeed, during Trump’s infamous Jan. 6 Ellipse speech prior to the Capitol riot, the former president attacked the Supreme Court justices he appointed for insufficient fealty, proclaiming that they cared more about the “social circuit” than protecting Trump.
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Even Leo himself would not go along with Trump’s 2020 machinations. According to Times reporting, “when Mr. Trump was trying to enlist legal assistance for his efforts to overturn his 2020 election loss, he reached out three times to Mr. Leo. But Mr. Leo declined to take or return Mr. Trump’s calls, and has since only dealt with him through others.”
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For enough people in the Federalist Society orbit, there is a line, Trump tried to cross it, and they were not willing to come along. That’s very good news. With a judiciary and American legal system filled with Federalist Society adherents and supporters, holding that line would be very important in 2025 if there’s a second Trump term.
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How might that line be held? First, Trump may have trouble confirming some of his nominees for positions including the attorney general, by a United States Senate that is quite conservative but not nearly as Trumpy as the House of Representatives. For those lawyers who get confirmed or don’t need confirmation, it is not clear that they will do so well in the courts. When you rule out elite lawyers and bring in those with less experience and sophistication to play in the big-league federal courts, they often strike out.
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While Trump’s lawyers would be sure to find some sympathetic loyalist judges in the lower courts, so far the Supreme Court has not shown itself willing to do Trump’s bidding in a wide variety of cases. Just as the very conservative Supreme Court has found that the United States Court of Appeals for the 5th Circuit sometimes goes too far to the Trumpy right, there’s likely to be plenty of resistance from the right, and not just the left, for Trump’s new attempts to run roughshod over the rule of law.
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Maybe I’m having a moment of unwarranted slight optimism. After all, one could easily imagine Leo coming back to Mar-a-Lago to kiss Trump’s ring should Trump get another term and Leo get to help pick a successor for 75-year-old Justice Clarence Thomas or other justices. A new version of the original Faustian bargain could emerge.
But that bargain would not bind everyone. Ultimately, I’m not putting my faith in Leonard Leo to do the right thing. Many members of the Federalist Society that I personally know are no friends of either Trump or Trumpism. They may well be the ones to actually hold enough power in our divided system of government and hold the line should we be in for a round of unprecedented attempted lawlessness in 2025.
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Terrifying Reports About Trump’s Plans for a Second Term Have One Bright Spot
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Tweet Share Share Comment On Sunday, the Washington Post reported on Donald Trump’s plans to turn the Department of Justice into a department of “revenge” targeting perceived adversaries if he retakes the White House in next year’s election, as well as a proposal to invoke the Insurrection Act against any protesting citizenry. Given recent polls showing Trump practically sweeping the key swing states in a hypothetical reelection matchup with President Joe Biden, the Post reporting reads as an ominous premonition.
The Post report builds on last week’s chilling reporting in the New York Times about the lawyers who would work for a second Trump administration. All of this portends a new threat against the U.S. legal system. Trump’s potential revenge crew includes lawyers such as Jeffrey Clark, the U.S. Department of Justice official during Trump’s first term who wanted to help Trump overturn his 2020 election loss by getting DOJ to falsely claim there was election fraud in Georgia and who is now under indictment for racketeering along with Trump and 16 others in that same state. The Times reported, however, that Trump World has soured on right-wing Federalist Society lawyers for being “squishes” who showed insufficient fealty to Trump’s personal interests the last time around. The reporting indicated that there would be no place for these non-loyalists next time.
Advertisement This apparent rejection of FedSoc lawyers is a silver lining that is easy to miss amid justified concern about the rule of the law in January 2025. It gives me a bit more confidence that the legal system could remain steadfast against the most significant forms of illegality by a second Trump administration.
Let me begin with the obvious. There are people within the Federalist Society orbit who have acted in badly antidemocratic ways. As Dahlia Lithwick and I have chronicled, Leonard Leo, the brains behind FedSoc and a host of groups working to transform the........
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