Leo’s Lane: Balls and Strikes versus Checks and Balances

Last week, a group of Federalist Society members kicked off the annual meeting by announcing a new group, calling itself Checks and Balances, led by Kellyanne Conway’s spouse, George.

On its face, it’s not clear what function the group will have, aside from focusing even more attention on George and Kellyanne’s differing views on the President. I assume, however, the statement the 14 lawyers signed is meant to embarrass other conservative lawyers into remembering the principles they lay out in their statement.

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. We believe these principles apply regardless of the part of persons in power. We believe in a “a government of laws, not of men.”

We believe in the Constitution. We believe in free speech, a free press, separation of powers, and limited government. We have faith in the resiliency of the American experiment.

That said, I want to look at a few details of timing and intent.

The WaPo has an article that describes why some of the signers joined the group. Attacks on DOJ, Trump’s cultivation of racists, and attacks on the free press.

As to Conway, though, it focuses on the appointment of Matt Whitaker (though also includes Trump’s claim to want to end birthright citizenship).

Other members have pointed to Trump’s ouster of Jeff Sessions as attorney general and installation of Matthew G. Whitaker as acting attorney general.

Conway, the group organizer, said, “There wasn’t any one thing; it’s a long series of events that made me think that a group like this could do some good.”

Conway has authored a series of articles attacking Trump’s politics, most recently an opinion piece in the New York Times that called Whitaker’s appointment unconstitutional.

“It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid,” Conway wrote. He similarly called the president’s plan to end birthright citizenship unconstitutional.

That’s interesting given the role multiple NYT stories have described Federalist Society Executive Vice President Leonard Leo had in the hiring of Whitaker. After the NYT almost got Rod Rosenstein fired (probably relying at least in part on Whitaker as a source), it described Leo recommending Whitaker to be Sessions’ Chief of Staff back in 2017.

Leonard Leo, the influential head of the conservative legal organization the Federalist Society who has taken leaves from the role to periodically advise the president since the transition, recommended Mr. Whitaker for his job with Mr. Sessions, according to a person briefed on the job search.


“He has the trust and confidence of any number of people within the Justice Department and within the law enforcement community, but also the White House,” Mr. Leo said of Mr. Whitaker.

Installing Whitaker as Chief of Staff last year is one of the reasons Whitaker’s appointment would be legal under the Vacancies Reform Act (though the appointment’s legality is still very much under debate), because it meant he had been in a senior position at DOJ long enough to qualify. And hyping Whitaker at that moment was a key step in prepping his installation after Sessions’ eventual firing.

NYT emphasized again, once Whitaker had been installed, Leo’s role in his installation.

At this point, let me take a detour. Most of the lawyers who signed onto Checks and Balances are thrilled with the way Trump has been packing the court with conservative judges. Which would mean, by extension, they’re thrilled with Leo’s role in the Administration (indeed, in all recent Republican administrations) for the way he has provided the Executive branch a steady supply of vetted conservatives to get approved for lifetime appointments. Conway himself has said Trump “deserves a tremendous amount of credit for that. I’ll be the first to clap my hands for it.”

Yet, in the NYT story on the group, Conway suggested that Republicans were so happy with Trump’s success in packing the courts that they overlooked other things like rule of law.

Mr. Conway, who has long been a member of and contributor to the Federalist Society, said he had nothing but admiration for its work. But he added that some conservative lawyers, pleased with Mr. Trump’s record on judicial nominations and deregulation, have been wary of criticizing him in other areas, as when he attacks the Justice Department and the news media.

“There’s a perception out there that conservative lawyers have essentially sold their souls for judges and regulatory reform,” Mr. Conway said. “We just want to be a voice speaking out, and to encourage others to speak out.”

In championing Whitaker, Leo has stepped beyond his traditional role — vetting and supporting judicial candidates — into a different one, which might either be judged as interfering in DOJ’s operations or, more alarmingly and accurately, helping the President (who has succeeded so well at packing the courts) undermine a criminal investigation into his own conduct.

Leonard Leo has stepped outside his lane. And George Conway, at least, is pushing back.

And that’s why I find Leo’s response to the group so interesting. He gave Axios a screed of bullet points talking about how offended he is by the move.

  • “I find the underlying premise of the group rather offensive,” Leo told me. “The idea that somehow they need to have this voice because conservatives are somehow afraid to talk about the rule of law during the Trump administration.”
  • “And my response to that is, no, people aren’t afraid, many people just don’t agree that there’s a constitutional crisis and don’t agree with the people who have signed up with this group.”

Several of those bullet point screeds focused on the Jeff Sessions’ firing.

  • “I measure a president’s sensitivity to the rule of law by his actions, not his off-the-cuff comments, tweets or statements. And the president has obviously had lots of criticisms about former Attorney General Sessions and about the department, but at the end of the day, he hasn’t acted upon those criticisms.
  • “He’s allowed the department to have an awful lot of freedom and independence. … He can say what he wants to say, but at the end of the day, words don’t threaten the rule of law, actions do. I’ve been to 48 countries around the world. I know a constitutional crisis, and I know what a rule of law crisis is. Lots of countries have them. This country doesn’t right now.”

Leo seems to be having fun playing DOJ kingmaker, on top of the great success he has had playing judicial kingmaker under Trump. But it seems at least some conservatives don’t believe that’s his role to play.

Update: I asked Conway about this and got a response after the post was published. He says this is not about Leo at all.

It’s a response to Trump and the need for conservative lawyers generally to say something about him. It’s got nothing to do with Leonard.

45 replies
  1. oldoilfieldhand says:

    All I need to know about George Conway is that he is married to Kellyanne, the woman who resurrected Donald Trump’s campaign using his own favorite form of manipulation, lying. She’s a liar. Think about that. It almost evokes sympathy for George.

  2. Trip says:

    Degrees of scum. That’s why the other day I cautioned not to view Conway as some resistance hero. I think Conway is looking for an escape hatch for the GOP should Trump go down in flames. He and his wife, in my opinion, are working both sides. Conway and Leo are otherwise 99% simpatico.

    • even-keeled says:

      Conservatives aren’t scum. That’s a scum-baggy sort of thing to say. Many of the things Trump does are incompatible with conservative principles, and many of those things are the same things that liberals complain about Trump doing.

      • NorskieFlamethrower says:

        “Conservatives” and Republicans have been all in on fascism at least since Richard Nixon. Not a dime’s worth of difference between ’em. Scumbags all.

      • Charles says:

        Many of the things Trump does are incompatible with conservative principles…

        Ah, the No True Scotsman rhetorical fallacy. Whenever someone on the right does something grotesque and obviously evil, like using the Justice Department to defend a corrupt president and attack his enemies, it is because they are Not A True Conservative.

        No True Conservative would deny citizens the right to vote or turn away refugees from violence instigated by the United States or tear children from their mothers’ arms or deny basic compassionate medical care to the disabled or deny food to those who are unable to work or deny effective legal counsel to the accused or turn terrible weapons of war on women and children or do any of the grotesque and obviously evil things the Republican Party has been doing for decades… by which one can conclude that there are No True Conservatives anywhere.

  3. NorskieFlamethrower says:

    Confusion, conflict, and the law: that’s the politics of our situation. Those who control the forces that are supposed to protect us from the first two now control the latter in the federal courts. The road map the fascists are using is the same one used in Germany in 1930-33. All they needed was 34% of the voting population and that 34% was willing to do anything to secure power for their masters. I would argue that we face the same situation now. Namaste

  4. earlofhuntingdon says:

    My thoughts and prayers go out to Leonard Leo and his family.  Leonard has lived so long behind the curtain – pulling the FedSoc levers, vetting the worthy, tossing the unworthy – that even the light from George Conway’s LED flashlight must turn his skin to ash.  What would happen were his work, the names on his nomenklatura, and the identities of his financial supporters exposed to sunlight?

    Is this civil strife on the right about maintaining checks and balances or only their appearance?  Or is it about protecting from criticism one of the chief organizations the right uses to recruit new members, to exclude and to attack opponents, to raise money, and to enforce discipline?

    • BobCon says:

      I think your final sentence is the right one. The Conway types are unhappy that Leo is moving the group into the limelight and putting himself out there as the leader of the organization. These are people committed to being the movers of the levers who live in the shadows, and Leo’s public role threatens all of that.

      I’m open to the possibility there are other concerns, too — I think the Whitaker move is something that would strengthen the executive branch, and I think Federalist Society is about the supremacy of the judicial branch. I’m sure there are concerns about what happens to their project if 2020 is another Blue year. I think there’s an interest in the orderly working of a legal system that has been extremely lucrative and productive for them.

      • Avattoir says:

        Given the country’s demographic is headed inexorably towards white minority within the lifetimes of at least some of these humbugs, isn’t it predictable that we’re going thru something like post Armistice Day Germany combined with the last big push from supporters of South African apartheid?

  5. Barry says:

    Politics makes strange bedfellows… This saying is adapted from a line in the play The Tempest , by William Shakespeare: “Misery acquaints a man with strange bedfellows.”  – from dictionary.com

    If Leo is right, then Trump will come and go as have all former presidents, and the legal rule of law will play out as it mostly always has –  favoring the broader class of those with power and money, but also reigning in individual abuses, defending due process, and keeping the 3rd branch relatively independent of the other two more overtly political  branches.

    If George is right, the country faces a unique threat from Trump. Though his judge-picking and legislation-signing has been 100% consistent with mainstream Republican (and George’s) preferences, Trump shares the instincts and inclinations of an amoral dictator who would gather  and sustain all power to himself and his family, and whose fear-based demagoguery and expressions of distain for the rule of law and a free press are evidence of this Gathering Storm. For George, dismissing Trump’s words as meaningless bluster is a potentially grave error. It’s urgent, he thinks, to make clear to Trump that he will meet resistance not just from the Left, but also from those on the Right who see One Man Rule as anathema to the American brand of democracy. Hence his group’s name – Cheecks and Balances.

    I agree with Shakespeare about misery and strange bedfellows. So I say pull back the covers and invite George to climb on in.

  6. Horse says:


    The Federalists’ interest in judicial supremacy is merely their disinterest in democracy. They are happily finding a fascist coup to be a more effective tool than mere infiltration of the federal judiciary, Conway’s cuckoldry notwithstanding.

    • BobCon says:

      I think Conway represents a split in the group. It’s like what you see in a lot of subgroups in the conservative movement — Neo Cons, libertarians and conservative Christians are more. What the purists are finding out is that they had a lot of adherents who were actually more interested in authoritarian and reactionary thought than anything else. Most of the purists are also unwilling to accept how similar their own views are to the ones who are now flocking to the authoritarians.

      The old liners like Conway and Kristol are still holding out hope that the GOP can seamlessly and painlessly turn back the clock. They’re just as mistaken about that idea as the Republicans who have joined up with Trump think there is any kind of loyalty or trust — they will be tossed to the curb on a whim just as Tillerson and Priebus and so many others were.

      • Trip says:

        Kristol should be happy about all of the neocons reemerging. What he doesn’t like, it seems to me, is Trump giving away the game rather than concealing it behind “decorum”.

        • BobCon says:

          Kristol has always been happy to make common cause with authoritarians like Sarah Palin, as long as he thought they were malleable.

          I think he recognizes this bunch can’t be influenced and will turn on him no matter what. He has poor judgment of people and history, but he is still ahead of most of his cohort.

    • earlofhuntingdon says:

      And a lot of gas, too.  I’ve never seen a SecState burp on live television before.

      Perhaps he had had lunch at McD’s with El Caudillo del Mar-a-Lago.

    • Greenhouse says:

      Look Trip, salmonella is a well known contaminant in raw, uncooked products, especially poultry (eggs, chicken, and yes turkey). The CDC is not recommending that people not eat turkey during the holidays. Just take the obvious, necessary, thorough steps to prevent salmonella outbreak: thaw your ice brick turkey in refrigerator (2-3 days) and not at room temperature, wash hands, disinfect/clean surfaces, cook your turkey at necessary heat/duration (ie don’t eat it raw), etc…Too much fear mongering. Cmon people, let’s be rational.

      • Trip says:

        The turkey part was a joke. When I posted about it the other day, I basically said use gloves, clean-up counters well, and cook thoroughly. Sometimes my humor is dark.

        The part about the romaine isn’t a joke, though.

      • earlofhuntingdon says:

        I think you’re understating the concern with these turkeys, although the CDC should have been clearer about safe food preparation and clean up.

        At the rate that commercial birds are processed, it’s virtually certain that they contain fecal contamination.  The American solution is chlorine wash.  Bleach washing of birds, however, does not decontaminate them so much as it makes the remaining bacteria hard to culture in the lab.  The bacteria is still there and capable of contaminating what it touches.

        Thorough cooking solves the problem regarding eating the birds.  It does not solve the problem of contamination of kitchen surfaces, hands, clothing, aprons, kitchen towels, sponges and cloths, and so on.

        As you say, the solution there is to thoroughly clean all of the foregoing and avoid reusing them until you do.  And try not to chase children, pets, partners, friends, family, and in-laws around the house before you do it.

        • Greenhouse says:

          I respectfully disagree EoH. Salmonella is not a new phenomenon. I understand clearly the current CDC warnings. I’m dietitian and I work in kitchens everyday. I have to know and understand food borne risks in order to avoid deficiencies from DOH. Yes, there is no 100% fool proof solution to germ control. However, disinfecting (properly) kills most germs on surfaces or objects, thus reducing the risk of spreading infection. Sanitizing lowers germ population significantly. Both sanitizing and disinfecting in combination, as well as cleaning surfaces will keep me and my family healthy and clean before sitting down to gobble…um, the gobble. Bon a petit to everyone here at EW on Turkey Day!

          • earlofhuntingdon says:

            Daily cleaning in a professional kitchen, properly run, I assume to be a tad more thorough than the average home kitchen.

            The risk I was referring to in commercially processed American birds was e. coli, not salmonella.  The critique about the overselling of the effectiveness of washing bird carcasses in bleach was from an EU critique, lamenting the prospect of such birds appearing in European food stores.

  7. Ollie says:

    So I’m listening to Trump during his answer session this am.  He’s really, really pissed about the 9th Circuit Court.  He’s making some real threats regarding how the 9th Circuit is basically a ‘scam’ and he’s going to “look into fixing it”…..

    Q: What is it about the 9th Circuit Courts that seems to side w/us a lot ie: immigration.  Trump must not be stacking his like minded judges there, yet?  Thank you in advance.  Ollie

      • Ollie says:

        Thanks bmaz for responding.  I hoped it wasn’t too stupid of a question.  I read and re.read the dialogues which go on here in these pages and I still have difficulty regurgitating them, hoping the whole anxiety filled time I am understanding it correctly.  I’ve just become overwhelmed bmaz.  I am really struggling w/not be totally heartbroken over the belief I had that human beings can only go so far in evilness.  I’m trying not to let it but often bmaz I have to shake my head over scale of threat to our democracy we’re all under.  I guess I was worried but maybe didn’t know how to articulate it as a question ..like when Trump stated that he would help Nancy Pelosi get votes for her speakership, that he thought she’d be great at it?  I didn’t want NP then.  I’m feeling like I can’t trust anything. Am I being duped by a fake article? Am I being misled? and that’s why I trust information here. .  Anyway, thanks for being kind.

        • bmaz says:

          The honest answer is….I dunno. I live and practice in the 9th Circuit, and know several judges there, though several are now Senior, and a couple have passed away. It is still an amazingly good circuit, and very forward thinking in many ways, especially transparency and access. I guess we shall see if that generally survives the Trump infusion. I think so, but am not positive. I can, without any question, say that the 9th Circuit bar, at least that I know of, hopes it does.

          • Ollie says:

            Oh bmaz thank you so much for these thoughts.  Wow!  I hope our 9th Circuit Judges and everyone be safe and steadfast against ‘tighty whitey’s’ evilness.  If it got his attention then you all in the 9th are bad? you all should be VERY PROUD!

            Peace be to you and yours, Brother.  Teri

  8. Corproate says:

    Funny the way that otherwise intelligent conservatives have managed to create a space where Trump can do no wrong. It’s “only words”, not actions – a patently ridiculous distinction considering the amount of ink spent by these people dissecting Obama and Clinton’s words. Surely they wouldn’t feel that way if Trump was promoting full-fledged communism 24/7 while otherwise keeping the Justice Department as it was? And if words matter, no need to worry, because then you take him “seriously, not literally.” So that allows you to wave away 95% of the rest of what he’s saying. And if he’s wrong on the specifics? Well at least he’s “directionally correct.” It’s this faux veneer of sophistication and seriousness, and a complete lack of self-awareness. The truth is evident and always has been: they like power first, second, and third.

  9. Ed Walker says:

    There’s a real contradiction in the idea of a “conservative” judge. In some cases it might mean trying to defend ancient and foul principles of law, those that support misogyny, homophobia, xenophobia, and so on. In another sense, it means striking down statutes because judges set themselves up as the arbiters of the limits of what Congress will be permitted to do.

    Leo likes both. That’s why he supported the drunken sex creep Kavanaugh, and other barely competent thugs.

  10. Eureka says:

    These new ‘generically’-named and vacuously-differentiated right wing groups seem like escalations of their language (and search engine) manipulation games.  “Checks and Balances” and e.g. “We the People” get so automatically backfilled with patriotism that it’s like they ARE baseball and apple pie.  It would be like them having instead outright named the FedSoc as “The Federalist Papers.” 

    When looking for a link to add about “We the People,” I happened upon an outstanding Pulitzer-for-Deep-Thoughts photo.   “We the People” (with “only” two known Proud Boys spotted in their midst) held a rally in Philadelphia on Saturday to get proximity to things ‘Constitutional.’ 

    Scroll to the bottom of the article (or see photo 5 of 7 if clicking on a photo of the set).  Look for the Four Horsemen (yeah not kidding) in left foreground.  In the deep center-right background-  at the vanishing point (ugh)-  sits Independence Hall.  AKA the old – olde- Pennsylvania State House, home to debates and signings of the Declaration of Independence and Constitution among other foundational events.  Some rally-goers are on the grassy Mall, with clusters by the Liberty Bell* and markers for George Washington’s slave quarters.

    Not so peaceful: Fights and excessive police force at pro-Trump ‘We the People’ rally
    Article and photos by Andrea J. Cantor, who has some additional videos at her twitter (@AndreaJCantor)

    The level of concern troll speak (‘Unity Constitution Constitution patriot!’)  rivals some of the RW twitter ops, see e.g. in:

    ‘We the People Rally’ in Philadelphia draws few supporters but hundreds of counterprotesters – The Washington Post

    *post 9-11 it’s a ‘Center,’ done in a brick and metal Revolutionary war-fort style.

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