The Trump administration literally tore down the White House yesterday. After lying that his golden imperial ballroom — a Versailles-powered-by-Home-Depot monstrosity — “won’t interfere with the current building,” crews destroyed the whole East Wing — all during a government shutdown that put essential government services on hold.
This all-too-on-the-nose metaphor wasn’t lost on the crowd gathered at the annual summit of the Society for the Rule of Law. The organization, comprised of mostly conservative and libertarian lawyers conceived during the first Trump administration, convened in a Washington hotel ballroom for a day long lament over the collapse of constitutional order. It didn’t take long for a speaker to link the physical destruction — and the circumstances around it — to the topic of the summit.
A certain gallows humor over the prospect of democratic collapse loomed over the conference. It manifested right at the start. After being wanded and searched by the team of security guards whose presence never quite faded into the background in this cramped space, a staffer handing out badges asked if I was a Society member.
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“Press,” I declared.
Another swooped in. “Press? I’ll take care of them.”
The table laughed and repeated “take care of them” in mock ominous tones.
“Hey, I thought this was the other kind of conference,” I replied. Some of the biggest laugh lines of the day came when people would make suggestions like the separation of powers holding or asking if voter suppression efforts are intentionally devious. Early in the day, former Maricopa County Recorder Stephen Richer let it slip that the Society’s Executive Director, Gregg Nunziata, asked moderators to try to coax something positive from each panel, which felt more like a dare than advice. Everyone’s struggle to do so became the running joke of the day. George Conway and Norm Eisen kept the room in stitches as they playfully bantered about the “strange bedfellows” that constitutional collapse creates. Paradoxically, all the levity conveyed a better grasp of the grim reality than reading stern letters penned by Democratic leadership.
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As the conference explored topics ranging from the unitary executive theory to election security, an unspoken theme, which only a few of the speakers seemed to grasp, was whether the work of this is an opposition organization that can bring the old conservative legal movement back from the brink, or if, like the physical East Wing, the charge of the moment is realizing that it’s gone and figuring out what gets built in its stead. It’s a question rooted in the cognitive dissonance many of these folks must feel. Because amidst the sea of blazers and bowties, with the right set of eyes, you could still pick out a few guys dressed as overgrown hot dogs assuring the audience “we’re all looking for the guy who did this!“
The event took place in the same hotel where I lived for three months as a junior Biglaw associate. Back then, George W. Bush had just imposed the PATRIOT Act, built an offshore prison the light of the law could theoretically never touch, and prepared to take over Iraq based on vague claims about WMDs that never existed outside the administration’s own fever dreams. So it came as a bit of a jarring juxtaposition as a parade of Bush alumni and Federalist Society exiles who would’ve nodded approvingly at torture memos twenty years ago all took turns lamenting the collapse of constitutional order.
But to quote the Washingtonian fantasy that inadvertently poisoned a generation, we will “forget the fact that you’re coming a little late to the party and embrace the fact that you showed up at all.”
Though there were still a few who couldn’t quite let go and spent the time crafting reasons why Trump’s abuses are really the fault of Democrats or dismissing Trump’s power grab as the natural and logical consequence of their decades-long push for a limitlessly powerful unitary executive. These coping mechanisms often paired with a charmingly tragic naiveté, as though this isn’t the natural and logical conclusion of the conservative legal movement’s Nixonian obsession with fluffing the legal foundation for unchecked executive power. Federalist Society minds spent their careers arguing the president should have king-like powers over the executive branch and are now shocked — SHOCKED — that someone might use those to be king. Like a Scooby-Doo villain voice swearing that it would’ve worked too, if it weren’t for that pesky Trump!
“This organization needs to be nonpartisan and focused on the Constitution and the rule of law, and not just be anti-MAGA, anti-Trump,” Jonathan Rauch of the Brookings Institution explained. “That said, it is equally important if you’re going to survive in the wilderness, you must not confuse tigers and pussycats.” When terms like unprecedented get thrown around, it’s unproductive to spend time and effort attacking the slippery slope like an American Ninja Warrior to find some way to hang this on something a backbencher Democrat said 20 years ago or trying to square-peg-round-hole Biden’s student loan forgiveness plan as the precursor to Trump zero-budgeting the Department of Education.
Judge Michael Luttig had no trouble distinguishing the tigers from the pussycats. In what can best be described as measured fury, Judge Luttig called out the administration’s “explicit, express defiance” of the judiciary and the Supreme Court’s abject failure to do anything about it:
Every day of the week, for the past 10 months, judges like Judge Gertner and Judge Grimm are facing the President of the United States, and Attorney General of the United States… lying to their face. Lying to the judges. The prosecutors are lying to the federal courts. Meanwhile, outside the courtroom, the President of the United States, and the Attorney General of the United States, are trashing the federal courts. Trashing the individual judges. Calling them every name in the book. Never in American history has this ever happened. And these people who are trying to do their job under those circumstances, are looking up at the Supreme Court of the United States, who they know, to a virtual certainty, would reverse them in a second if they held Donald Trump in contempt.
This is Supreme Court is the apotheosis of the conservative legal movement. For all the talk of liberty and small government, when the chips are down, all it seems to mean to the justices is the liberty to pollute drinking water and a small government that just cuts out the part fighting consumer fraud.
Against this backdrop, we return to the question: what is the role of the principled conservative at this moment? Richard Bernstein, a former Biglaw partner and Scalia clerk, discussing what happens if Mike Johnson’s current refusal to seat a duly elected member metastasizes into a full-scale rejection after the midterms, “if they allow people duly elected, certified in their states, not to become members of Congress, then the game’s over. The game’s over. Then, then we’re not at the opposition. We’re the resistance. And I’m too chicken to be the resistance.” The omnipresent, stone-faced security certainly gave more of a resistance energy.
Joking aside, is this an opposition or a resistance? Former Congresswoman Barbara Comstock invoked the concept of “civil society,” which played such a profound role in post-Soviet transitions. Norm Eisen didn’t touch on this subject, but it struck me that he had served as the ambassador to the Czech Republic, a nation held up as an example of how robust, underground civil society structures can facilitate post-authoritarian recovery.
Is that the future of this group? Building a “conservative” legal movement from the rubble of the last one? If so, it’s going to require even more folks to take a harsh look at what really brought Trump to this point. Whatever the answer is, the Society seems committed to figuring it out.
Hopefully before next year’s conference when we’ll be probably be meeting in an El Salvadoran labor camp.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.