Checks & Balances Responds

Recently, I wrote a post that challenged Checks & Balances—the new conservative and libertarian group that has formed to raise questions about President Trump and the Trump Administration—to identify the most serious problems they saw in Trump and his Administration so that they could be evaluated.

Two law professors, Orin Kerr and Jonathan Adler, who I know and respect, provided some responses on Twitter. While Twitter does not allow long statements, their responses are informative.

Before addressing their answers, though, I should note that they appear to be misinterpreting me. Some of the tweets sound as if they think I am defending President Trump. Other tweets seem to assume I believe Trump’s statements and his departures from presidential norms do not raise serious concerns. Neither of these assumptions is correct.

I believe presidential norms are important and that improper statements—those that are factually incorrect or unfairly attack others—are very problematic. I believe I was clear before, but if not, let me say it now: Clearly, President Trump says many things that are subject to being strongly criticized. If that is the issue for debate, then there is little to discuss.

I asked Checks & Balances whether there are other matters, especially governmental behavior, that are worse in the Trump Administration than with other traditional Republican administrations. That is a matter worth exploring and perhaps debating. One answer was from Kerr, who said that he had been tweeting about these matters for three years. Perhaps, but it is the problem with general assertions like this that led me to write my post in the first place. To evaluate the charges against Trump, it is essential to have a list of specific complaints against him so they can be assessed.

Kerr did mention two specific actions. First, he said would “include Trump’s reported efforts to use the Executive branch to put his political enemies in jail.” This is exactly the type of charge that I am looking for. Kerr seems to be referring to this article that says President Trump wanted to order an investigation of Hillary Clinton and James Comey, but he was rebuffed by the White House counsel, whose staff wrote a memo outlining the dangers to Trump from such an action.

I have a different view about this than Kerr does for a variety of reasons, but let me just mention the most important ground of difference. I believe there are strong grounds for having a special counsel investigate various aspects of Secretary Clinton’s behavior, including her handling of emails. In my view, the Obama Administration should have appointed a special counsel. Instead, the investigation engaged in a variety of problematic actions, including the Attorney General’s meeting with Bill Clinton on a plane. Since there is a good chance that the investigation was not a genuine one, having a special counsel do an investigation now would be helpful in determining what happened.

Of course, the Justice Department could conduct the investigation, but there are good reasons to employ a special counsel instead. The Justice Department might feel disinclined to reach a different result from its prior (arguably tainted) investigation. Moreover, when investigating one’s “political enemies,” it is a good practice to use a special counsel.

Kerr also mentions another alleged type of misconduct by Trump: firing his Attorney General for following ethics rules. I have some views about that as well, but I am not as up to date on that controversy (and this post has already gone on too long), so I won’t comment here.

In the end, I am convinced more than ever for the need for Checks & Balances to come up with a list of what they regard as the worst actions of the President and his administration. These issues should be explored and debated.