On The Case

Federalist Society is silent on liberal counterpart’s call for joint defense of Mueller probe

(Reuters) - On Tuesday, the president of the left-leaning American Constitution Society released a letter addressed to Eugene Meyer, president of the Federalist Society for Law & Public Policy Studies, a legal group that wields enormous influence in conservative politics. ACS’s Caroline Fredrickson asked Meyer and the Federalist Society to team up with her members in a joint effort to avert the constitutional crisis that will ensue if President Donald Trump fires special counsel Robert Mueller or Mueller’s Justice Department overseer, Deputy Attorney General Rod Rosenstein.

“While the members of the American Constitution Society and the Federalist Society disagree about many issues, they should share a fundamental belief in the rule of law,” the letter said. “Progressive and conservative lawyers nationwide need to speak out now to avert this crisis. Words and even deeds after the fact will not be sufficient to undo the damage that will result from such an act.”

The Trump presidency has turned the phrase “constitutional crisis” into over-chewed pap, but it’s hard to argue with ACS’s contention that this president does not feel the same strictures as his predecessors when it comes to criticizing the judicial system. Just scroll through the president’s Twitter history. He has questioned the legitimacy of courts that have issued opinions he disagreed with. He has lashed out at the FBI and the intelligence community for investigating the so-called Steele dossier on Trump’s alleged ties to Russia. The president has complained about Foreign Intelligence Surveillance Act warrants on a former campaign advisor and has tweeted angrily about federal warrants executed at his personal attorney’s home, office and hotel room, even though all of the fury-provoking warrants were approved by federal judges.

Last week, after that raid, the president was asked if he would attempt to fire Mueller and said, “We’ll see what happens.” Trump has repeatedly said he would not have appointed his attorney general had he known the AG would recuse himself from directing the Russia investigation, in addition to accusing Mueller and Rosenstein of conflicts of interest. The president has accused former top FBI officials Andrew McCabe and James Comey – a “den of thieves and lowlifes,” according to the president – of committing crimes. Trump’s tweets have suggested that Comey, who has spent most of his career in public service as a prosecutor, should be imprisoned for supposedly leaking classified information and lying to Congress. Comey’s response, in an NPR interview: “This is not normal. This is not okay … There's a great danger we'll be numbed into forgetting that, and then only a fool would be consoled by some policy victory.”

So what does the Federalist Society think of President Trump’s impact on the rule of law in the U.S.?

I wish I could tell you.

I called FedSoc to ask President Meyer how his group would respond to the ACS letter. Before I got to Meyer, I was referred to an outside communications firm, CRC Public Relations. A CRC spokesman for the Federalist Society said the group had no comment on ACS’s invitation to team up to defend the Mueller probe.

Fair enough. The Federalist Society is not a traditional advocacy group like, say, the U.S. Chamber of Commerce or the American Association for Justice.

But it does claim to have “fostered greater appreciation” for the rule of law and its protection of “individual freedom and traditional values,” according to its website. FedSoc also said its efforts “are improving our present and future leaders’ understanding of the principles underlying American law.”

With those assertions in mind, I reached out to almost all of the outside members of the Federalist Society’s board of directors, mostly by email. (I was unable to obtain contact information for Federalist Society counselor Kenneth Cribb.) I mentioned the ACS letter but also asked the board members, more broadly, if they agreed with ACS that the Trump presidency had impacted the rule of law: “Do you think President Trump has enhanced or detracted from the public’s faith in the justice system?”

Two professors on the FedSoc board, Gary Lawson of Boston University and Nicholas Quinn Rosenkranz of Georgetown, declined to comment via email. An assistant to C. Boyden Gray, a former White House counsel for George H.W. Bush, said in an email that he was tied up with requests to discuss Barbara Bush. And that was it. Federalist Society board chairman Steven Calabresi of Northwestern did not respond to an email or a phone message.

The Trump administration appears to have great regard for the Federalist Society. FedSoc executive vice-president Leonard Leo has advised the White House on judicial nominations (he took leave from the group during the confirmation process for Justice Neil Gorsuch). Many of President Trump’s nominees have been members of the Federalist Society.

ACS president Fredrickson told me she’s still hoping the Federalist Society will decide to accept her invitation. ACS student groups, she said, are approaching campus Federalist Society chapters to see if they can find traction with young conservatives. She also pointed out that ACS and the Federalist Society have worked together in the past to cosponsor law school debates on hot issues like term limits, banning hate speech and law enforcement use of mobile phone data.

Fredrickson acknowledged that the previous cooperation between ACS and the Federalist Society is far short of working together to stop President Trump from attempting to derail the Mueller investigation. But she said she’s counting on Federalist Society members to be as fired up as her membership about protecting the rule of law.

“We have a certain understanding of bedrock principles,” she said. “Firing Rosenstein or Mueller or in some other way upending the Mueller investigation would mean that understanding is no longer true … We hope that would be a step too far for the Federalist Society, as it certainly is for the American Constitution Society.”