Veteran judiciary-watcher Ed Whelan—who has faithfully and fruitfully served the conservative legal movement since its early days—has written an article that will appear as “Who’s Afraid of Trump II?” in the September 2024 print edition of National Review. Whelan’s article presents an informative summary of the thought process shared by many highly intelligent, well-informed Republicans who either will not vote for President Donald Trump in November or will vote for him with deep misgivings and fears.
In their view, Trump presents conservatives and the conservative legal movement with a “conundrum.” On the one hand, if Trump were elected to a second term, he would very likely appoint more good (or at least not-progressive) judges to the Supreme Court, courts of appeals, and district courts. But on the other hand, his reelection would “threaten grave peril for the causes and principles that the conservative legal movement espouses” because a second-term Trump might “abuse his powers to undermine the rule of law.”
Nowhere in the piece does Whelan use the words “norms” or “democracy,” but Republicans of this temper may be nodding in agreement with Kamala Harris when she posts on X, just in the month of July, such classic hits as: Trump represents a “clear threat” “to our democracy” (July 13); “[t]he very heart and core of our democracy is at stake in November” (July 11); “Donald Trump wants to turn our democracy into a dictatorship” (July 9); “Donald Trump is a threat to our democracy” (July 3); and “[d]emocracy is on the ballot in November” (July 2). (After the morning of the attempted assassination of President Trump, Kamala did not tweet along those lines for the rest of July.)
We conservatives have come to expect such panic and trite hyperbole from Democrats working to turn out the low-information and emotion-driven vote. But I would make an earnest plea, especially to those friends in the circle of experienced Republican lawyers and writers, to have less fear and more hope.
Limited Hopes
Whelan begins his piece by acknowledging that the conservative legal “movement’s breakthrough achievements occurred in Donald Trump’s appointments of Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.” And yet Whelan holds back from acknowledging that it was Trump’s appointees who had slain the conservative legal movement’s twin dragons, Roe v. Wade and Planned Parenthood v. Casey, not his predecessors who Whelan undoubtedly considered more trustworthy defenders of the rule of law. Whereas Trump (with valuable assists from Mitch McConnell and Harry Reid) went 3-for-3 in appointing justices who proved themselves willing to uphold the rule of law and shred those jurisprudential atrocities masquerading as acts of justice, Ronald Reagan went 2-for-4, and the Bushes each went 1-for-2. Whelan seems to give almost all of the credit for that 3-for-3 record to “[t]he movement,” and almost no credit to the man who accepted the sound advice he was given, rather than falling for a David Souter or Sandra Day O’Connor. Perhaps Trump deserves a bit more credit than Whelan gives him.
Whelan reaches the hopeful conclusions that (1) a second Trump administration would likely bring with it a Republican-controlled Senate, (2) Republicans would “be in good shape to keep control [of the Senate] for all four years of [Trump’s] presidency,” (3) Trump would appoint, and the Senate would confirm, excellent justices and lower-court judges, (4) Trump would “ensure a solid conservative majority on the [Supreme] Court for the next 15 or 20 years,” and (5) “the general ideological alignment of the Court [c]ould shift from 6–3 to 7–2.” Hear, hear!
Whence the “Grave Peril”?
But then Whelan turns to the “grave peril” that a second Trump term supposedly presents. In Whelan’s grim presentment, Trump “would abuse his powers to undermine the rule of law,” especially by making good on “his threat to prosecute his political enemies for the sake of vengeance”—even though “a decision to prosecute should not be motivated by political considerations.” Per Whelan, “no matter how unfair or politically motivated you think the various prosecutions of Donald Trump have been, the rule of law forbids retaliatory prosecutions.”
Whelan rightly acknowledges that Trump has repeatedly made statements to the effect that “‘success’ would be his real revenge.” In his speech at CPAC in February, for example, Trump stated to the horror of some, “[T]he unprecedented success of the United States of America will be my ultimate and absolute revenge.” That doesn’t sound so bad, does it?
Whelan also concedes that some of the brash showman-populist’s fierier campaign-trail rhetoric may “prove to have been bluster.” Here, one recalls that—Trump’s campaign-trail and debate-stage “promises” in 2016 notwithstanding—first-term Trump never was able to “lock [Hillary Clinton] up.” Recall further that FBI Director James Comey—a mere four months before the 2016 election, when Comey felt himself to be “in an environment where Hillary Clinton was sure to be the next president” (i.e., sure to be his next boss)—took the highly unusual step of making public his recommendation that the DOJ not prosecute Clinton for her “extremely careless . . . handling of very sensitive, highly classified information” despite evidence that she may have committed various federal crimes. Surely Whelan can at least understand how Trump could have suspected foul play and (reportedly) wanted the DOJ to prosecute Clinton and Comey.
Now, it is true that Trump promised on Truth Social that in a second term he would “appoint a real special ‘prosecutor’ to go after the most corrupt president in the history of the USA, Joe Biden, the entire Biden crime family, & all others involved with the destruction of our elections, borders, & country itself!” (Trump’s trademark all-caps omitted). Yet, for starters, this sounds like classic Trumpian hyperbole. But even looking past the hyperbole, it’s hard to see how it would necessarily “undermine the rule of law” for Trump to appoint special counsels to independently investigate whether there are sound legal bases for prosecuting, among potential others: Joe Biden (who some suspect is the notorious “big guy”), members of the Biden family (e.g., Hunter and James), and Alvin Bragg, a prosecutor who “routinely excuses criminal conduct in a way that has endangered law-abiding citizens in his jurisdiction” yet seemingly “contorted the law in an unprecedented manner in [his] quest to snare” Trump on “bespoke” charges “involving alleged misdemeanor business records violations from nearly a decade ago.” After all, as the Supreme Court, Joe Biden, and Kamala Harris all recently affirmed, no one is above the law. And we in the conservative legal movement recognize that as the foundational principle of the rule of law.
It seems worth noting here that, based on his February 2024 report, the special counsel appointed by Biden’s attorney general to investigate Biden’s handling of classified information “uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” including “obviously sensitive information discussed during intelligence briefings with President Obama and meetings in the White House Situation Room about matters of national security and military and foreign policy.”
Those facts suggest that it could be perfectly legitimate for a different special counsel to prosecute Joe Biden for committing serious federal crimes. To be sure—as Whelan explains for those who may “be unfamiliar with the concept of statutes of limitations”—“the running of the statute-of-limitations period should prevent a Trump administration from prosecuting Biden for the various [acts he did not take in his official capacity] . . . that Republican congressmen have suggested are criminal.” If that is the case, then it is what it is. But, funny enough, in the preceding quotation’s omission indicated via the ellipsis, Whelan writes: “(I confess that I can’t keep track of [all the unofficial-capacity acts Biden took that Republican congressmen have suggested are criminal]).” So, it seems that it remains to be seen whether the window for pursuing legal action against Joe Biden has truly closed. And seeing as even Whelan “can’t keep track of” all the unofficial-capacity acts Biden took that Republican congressmen have suggested are criminal, perhaps the limitations periods on some of Biden’s alleged crimes will not have run by the relevant point in time. For present purposes, let us just say that there is good reason to believe there also exists a legitimate basis for prosecuting members of the Biden family other than Mr. President.
As for Trump’s threat to hold people accountable for the border crisis, consider the shocking statistic that ~11.5 million aliens have been encountered or detected illegally entering the country during the Biden administration. That number is greater than the population of all but 7 individual states. How did that come to pass? Well, on President Biden’s very first day in office, his Acting Secretary of Homeland Security “ordered a blanket halt on nearly all deportations of illegal aliens,” and Biden himself sent a bill to Congress that would provide illegal aliens “an opportunity to earn citizenship.” (For her part, “border czar” Kamala Harris believes we “have to put into place a law and a plan for a pathway for citizenship for the millions of people who are here.”) The Biden administration has also interfered with states’ independent efforts to secure the border. Unsurprisingly, thanks to Team Biden’s actions, inactions, and “softened political rhetoric,” the number of aliens illegally entering the United States from Mexico has exploded. Since Biden and Harris took office, Customs and Border Protection (“CBP”) has recorded nearly 10 million encounters with aliens illegally entering the country (excluding the over 1.6 million “illegal immigrants who avoided agents but were detected by other forms of surveillance”) and has released more than 3.3 million of the encountered illegal aliens into the country. The Biden administration has provided some of these illegal aliens with free stays in “Hampton Inn[], Best Western, Comfort Suites, and Holiday Inn Express hotels.” As Elon Musk, Joe Rogan, and many others have concluded, it would seem that progressives may be scheming to import and ingratiate themselves to millions and millions of future voters. Does some provision of our voluminous federal criminal code forbid such action? Perhaps not. But surely a principled conservative may wish there were a legitimate way to penalize all this.
Whelan says that “a decision to prosecute should not be motivated by political considerations.” But, as Whelan acknowledges, “political enemies are [not] immune from prosecution” for crimes they have committed. So, if Whelan’s point is just that prosecutors shouldn’t prosecute “political enemies” simply “for the sake of vengeance” when the enemies haven’t committed any serious crimes, then certainly we all agree with Whelan about that. But if Whelan fears that a second-term Trump would have his supposedly innocent “political enemies” prosecuted simply “for the sake of vengeance,” then it seems his fear may be quite out of scale. Remember: first-term Trump didn’t even have his archnemesis Hillary Clinton prosecuted! And that was after the FBI director announced to the world just before the election that there was evidence she had violated federal law with her “extremely careless . . . handling of very sensitive, highly classified information.”
There is no doubt that this country’s future is in grave peril. But one wonders whether conscientious Republicans really ought to feel so threatened by a spray-tanned, 78-year-old, Republican real-estate mogul from Florida.
Sufficient Unto the Day is the Evil Thereof
The two main fears that Whelan seems to have about the prospect of a second Trump presidency are that (1) Trump would have fewer “key legal officials” and “chiefs of staff” around him to “thwart[] . . . his worst impulses,” and (2) lacking powerful “thwarte[rs]” by his side, Trump wouldn’t be prevented by insiders from “issu[ing] directives that are patently beyond his legal authority.”
As to Whelan’s first main fear: no decent American—let alone, a member of the conservative legal movement—wants to be ruled by a dictator surrounded by “fawning sycophants.” For all his personal failings, Donald Trump is no would-be dictator. But one suspects there may just be no changing the mind of intelligent people who—nine years after “the escalator ride that changed everything”—truly believe that Trump is now running for Dictator of the United States. Perhaps a good place to begin is explaining to them that, partly due to Trump’s generally sound political “impulses,” Trump accomplished quite a bit more during his first term than just appointing good judges. An open-minded American need not be a total Trump toady to be impressed while scrolling the official “Trump Administration Accomplishments” webpage. And it’s far from clear why—guided by both his same-as-in-his-first-term impulses and the lessons he learned during his first term—Trump would not do just as much, if not more, good for the nation during a second term.
Near the end of his article, Whelan pessimistically predicts that “very few talented individuals with good judgment would volunteer to be [Trump’s] punching bag” in a second term. Whelan is no doubt correct that President Trump would have a tougher time drawing into a second administration those “outstanding conservative lawyers” whose near-perfect curricula vitae feature only such top educational institutions as Yale, Harvard, and Cambridge, and only federal clerkships with the likes of Ninth Circuit Judge J. Clifford Wallace, D.C. Circuit Judge Laurence Silberman, and arch-originalist Supreme Court Justices Antonin Scalia and Clarence Thomas. Indeed, Trump V.P. pick J.D. Vance merely attended Yale Law School, where he served as but a lowly “editor” on the highly selective Yale Law Journal; no wonder he only ever clerked for a federal trial judge in the Eastern District of Kentucky. At least J.D.’s wife Usha “served as the Executive Development Editor of the Yale Law Journal” before clerking for then-D.C. Circuit Judge Brett Kavanaugh and Supreme Court Chief Justice John Roberts. But I sure hope that, merely by being J.D.’s wife, Usha hasn’t “volunteer[ed] to be [Trump’s] punching bag.”
As Whelan knows, there is outstanding talent and good judgment to be found among those well- but less-perfectly credentialed (see, e.g., Notre Dame Law-educated) legal conservatives who labor in the legal vineyards situated from sea to shining sea. If it comes to pass that there is a second Trump administration to be staffed in the first place, presumably some of those sub-elite-but-nevertheless-supremely-talented legal conservatives would have voted for the Republican candidate without trepidation. Here it may also be worth recalling that, “[a]s a result of what one judge calls ‘Stanford law school clerk-bullying cretinism,’ in recent years several Stanford law students who had *accepted* clerkships with conservative judges withdrew their acceptances.” One wonders whether, given law-school campuses’ current political climates, elite law schools are the most reliable places to find young lawyers who live by the conviction beautifully articulated by Justice Thomas that even when people yell at you, “North is still North.”
One even begins to suspect that a second Trump administration would have little to no problem attracting an ample supply of talented junior legal officers from among the ranks of the most energized and conservative of young lawyers: those who respectfully reject an (illusory) “originalism that prides itself on the careful avoidance of moral questions, [on] positivism, [and on] restraint.” “[F]or years, lawyers and judges have talked themselves into a state of not seeing the pervasive moral logic of the law, the logic that has underlain and pervaded what they do every day.” Maybe the time has finally come for legal conservatives to “fundamentally challeng[e] the premises of . . . legal liberalism and positivism” and acknowledge that judges “must inevitably, in some domain of cases, have recourse to general background principles of law and to the natural law in order to decide how texts should be read”? Are “those anchoring truths that virtually anyone can grasp at once” still “branded as the enemy of all things just and rightful in our own day”? They certainly are, but, regardless, the right legal conservatives stand ready to take “the moral turn in jurisprudence.”
And even if Whelan were right about how threatening the prospect of a second Trump administration is, there would still be reason to hope that enough legal conservatives “with good judgment” would summon the public-spiritedness within themselves to help support and defend the Constitution by serving in the administration. After all, Americans with good judgment volunteered to fight communism in Vietnam and terrorism in Iraq late in those wars when the respective home fronts were deeply demoralized. And brave Americans volunteer each and every day to police the crime-ridden streets of Democrat-controlled cities whose soft-on-crime, George Soros-backed prosecutors seem disturbingly eager to prosecute police officers. So, we ought to be able to rest assured that enough intelligent, principled “[m]embers of the conservative legal movement” would answer the call to serve—within a second Trump administration—“the causes and principles that the conservative legal movement espouses.”
A Dictatorial Rampage?
Whelan’s second main fear—“that Trump would issue directives that are patently beyond his legal authority”—is a bit baffling. This fear assumes that his adversaries, allied with hostile federal judges filling the landscape, would be inert and that none of Trump’s advisors would offer up cautions. Of all people, we in the conservative legal movement appreciate how well our brilliantly conceived constitutional system, with its checks and balances, can limit the latitude for, and harm done by, ultra vires executive action.
So, is the “grave peril” posed by the prospect of Trump’s reelection that a second-term Trump would go on a dictatorial rampage that other actors in our constitutional order would be unable to check? One highly doubts it. How about the risk that an 82-year-old Trump would deny the country a peaceful transition of power at the end of a second term? It also seems highly implausible that that would happen. So, at the end of the day, is the “grave peril” that Whelan fears simply that, “outside the realm of judicial nominations,” Trump would lead the nation as he did “during his first term”? If it is, then the “grave peril” is, in actuality, neither grave nor perilous for conservatives, and we can safely lay down our worries about January 2025. There’s enough true societal darkness to confront in the meantime.
One of the hardest things to take hold of in Whelan’s critique is that it comes from a place of fear, not grounded in cold, hard fact but rather on pessimistic conjecture. That conjecture springs, of course, from his sense of Trump’s character. But would it be inapt to set that fear against the concern of other, serious conservatives that the deepest political shortcoming of far too many elite Republicans is that they shudder at the thought of having politicians on their side who are so outré as to be willing and able to do what it takes to roll back and deter liberals’ (quite-illiberal) aggression? At this moment in American history—as many conservatives who used to fear Trump, like Megyn Kelly and Trump’s running mate J.D. Vance, have realized—conservatives must confront and hold accountable those who have brazenly weaponized the government against pro-life pregnancy centers, a Christian baker, a Catholic foster-care agency, “a Catholic order of nuns that run homes for the elderly poor across the country,” and countless other regime-despised, bitter-clinging “deplorables” (religious and not religious).
“Team Trump” is, to a very large degree, right when it asserts, “They’re not coming after him, they’re coming after you. He’s just in their way.” To reclaim law and order from the current lawlessness and disorder now prevailing, conservatives must be more than the liberal regime’s unwitting controlled opposition. We must do more than “stand[] athwart history, yelling Stop.” With diligence, faithfulness, and charity, we must fight back against the dark forces behind the relatively late-stage civilizational descent that we are witnessing. We must fight to, yes, make America great again. And we will need to fight wrongful fire with righteous fire of our own. To think we won’t need to do so is to kid ourselves or to content ourselves with a “graceful” defeat. But in this great battle, we cannot accept defeat. Just as we must never back down from the need to do hard things in our personal lives, so too must we never be scared to do unpopular things in political life.
Unafraid to Take a Stand
Whelan closes his piece by dividing members of the conservative legal movement into two camps: (1) those who are “vocally opposed to Trump,” as Whelan certainly seems to be, and (2) those who, “as much as they might have wished that someone else had won the Republican presidential nomination, would find it much more alarming that Kamala Harris (or whoever might be Trump’s Democratic opponent) would become president.”
Well, count me among the members of a third camp: those who believe President Trump accomplished many good things for this country during his first term, believe he would do more of the same during a second term, and believe he is the Republican candidate who the conservative electorate selected, who the people will elect, and who—having experienced tremendous “political persecution”—is uniquely motivated to start doing much of what needs to be done to begin the long battle to bring an end to the forces that are tearing this nation apart.
Perhaps now is the time for conservatives to have the audacity to hope that Queens native Donald John Trump, channeling New York’s beloved Frank Sinatra, is right when he declares that “the best is yet to come.”
