Adam Liptak writing in the New York Times has reported the formation of a small group of conservative and libertarian lawyers, a few of whom are friends of mine, called “Checks and Balances,” which criticizes President Trump for endangering the rule of law and the Constitution.
I am a conservative law professor who has defended President Trump, for whom I voted. I want to suggest here that the “Checks and Balances” group, while raising some valid points, overlooks the forest for the trees. The truth is, President Trump has done more to restore the Constitution than any other recent president.
The president’s first responsibility under the Constitution is “to preserve, protect and defend” it from all enemies foreign and domestic.” This language appears in the oath that each president takes when he is sworn into office.
The first way in which the president preserves, protects, and defends the Constitution is by appointing judges who are faithful to its original meaning. President Trump has done that in spades with his two superb appointments to the U.S. Supreme Court. Justices Neil Gorsuch and Brett Kavanaugh are brilliant, originalist lawyers who graduated at the top of their classes from Harvard and Yale Law School and who clerked on the U.S. Supreme Court. You could not have done much better with Supreme Court nominations.
Moreover, Trump’s 28 or so appointments to the federal courts of appeals, and his dozens of district court appointees are equally superb. Even the “Checks and Balances” group concedes Trump’s judicial appointees are stellar. But, I would go even further than that and would say Trump’s judicial appointees are the best since Ronald Reagan’s presidency and are better than those of either Bush. President Trump gets an A+ on appointing judges.
Second, for nearly two years, Trump retained Attorney General Jeff Sessions, a very fine man, even though they were not on speaking terms. This again is far more than Trump should have had to do. President John Kennedy appointed his brother Robert to be his attorney general. President Richard Nixon appointed his former campaign manager John Mitchell as his attorney general. These appointments improperly politicized the Justice Department and could be called corrupt.
Former Obama Administration Attorney General Loretta Lynch improperly met with Bill Clinton for 45 minutes on an airport tarmac when Hillary Clinton was under investigation by the Justice Department, and two top FBI aides closed the Clinton investigation and opened one into Trump for blatantly political reasons over which one of them was ultimately fired. In contrast, the appointment of well-seasoned Acting Attorney General Matthew Whitaker is perfectly proper. An Office of Legal Counsel (OLC) opinion released this week confirmed as much.
Trump gets an A+ for not politicizing the Justice Department, which he could do at any time by firing Deputy Attorney General Rod Rosenstein or Mueller for their possible conflicts of interest.
Third, President Trump has had to put up with for two years an unconstitutionally-appointed Special Prosecutor Robert Mueller. Knowing he has nothing to hide, Trump (unlike any of his predecessors) let Mueller comb through all the White House files and interview Don McGahn, who was Trump’s White House counsel, for 30 hours. This level of cooperation by Trump with Mueller goes way beyond anything that Trump needed to do, and he gets an A + for that as well.
Fourth, “Checks and Balances” complains about Trump’s call to end birthright citizenship. While I agree that the 14th Amendment does confer birthright citizenship, the actual legal argument itself is extremely close and complex and the evidence is in such equipoise that I give myself only about a 55 percent chance of being right in asserting that birthright citizenship is conferred, as it is now understood, by the 14th Amendment. In fact, leading originalist scholar John Eastman argues that Trump. “Checks and Balances” is just plain wrong in asserting that this is an easy constitutional issue. Give Trump another A+ for identifying an issue that people thought was easy, but which is actually hard. Not bad work for a non-lawyer.
Fifth, “Checks and Balances” complains about Trump’s attacks on the media, but in fact all the president has done is to exercise his own rights of free speech. Trump is wisely speaking back through Twitter and every other possible means to get his message to the public in the only way that is possible when the media speak in the most biased way I have ever seen of a president. Trump gets an A+ on this as well. If he did not “talk back” to the press, they would define him as being a nitwit and a light weight, which is what the press did to President George W. Bush.
Sixth, “Checks and Balances” complains that President Trump should not publicly call for a criminal investigation of Hillary Clinton’s email server with classified information held insecurely and illegally even as Sen. Chuck Schumer (D-N.Y.) publicly calls for the prosecution of Trump and his family and friends over a Russia-gate scandal that does not exist.
I do not think any politician should criminalize politics, but I have to note that the Democrats started this practice by absolving Hillary of clearly illegal behavior and then on the flimsiest circumstances starting, through two partisan FBI agents, a criminal probe of Russia-gate, which has now metastasized into the Mueller investigation. Again, Trump gets an A+ while Schumer gets an F.
The Mueller investigation and the Hillary Clinton investigation should both be closed down because the criminalization of partisan disagreement will undermine our democracy. We should not have crowds at political rallies screaming and chanting “Lock her up.” On that much I agree with “Checks and Balances.” But, both Trump and Sen. Chuck Schumer need to agree on that point for democracy to work. There is little prospect of that, because Schumer is far too partisan.
Steven G. Calabresi is co-founder and chairman of the board of directors of the Federalist Society, co-author of “The Unitary Executive: Presidential Power from Washington to Bush,” and the Clayton J. & Henry R. Barber Professor at Northwestern Pritzker School of Law.
The views expressed are the author’s alone and do not reflect those of Northwestern University or the Federalist Society.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
