Peter Keisler Peter Keisler. Photo: Diego M. Radzinschi/ALM

A new statement from Checks & Balances, a group of high-profile conservative lawyers, is urging Congress to “conduct further investigation” into behavior detailed in the Mueller report that is “starkly inconsistent with the president’s constitutional duty to ‘take care that the laws be faithfully executed.’’’

The 11 signatories of the statement posted Tuesday included several Big Law attorneys: Peter Keisler of Sidley Austin; King & Spalding’s Marisa Maleck, a former law clerk to Justice Clarence Thomas; and John Bellinger III of Arnold & Porter Kaye Scholer. The letter came with a disclaimer: “Each of us speaks and acts solely in our individual capacities, and our views should not be attributed to any organization we may be affiliated with.”

Also on the list of signers was retired Jones Day partner Donald Ayer; Jonathan Adler, professor at Case Western Reserve University School of Law, and George Conway III, of counsel at Wachtell, Lipton, Rosen & Katz and a persistent President Donald Trump critic whose wife is Kellyanne Conway, a close adviser to Trump.

Stuart Gerson, a Justice Department official under President George H.W. Bush, a member of Becker Epstein & Green, and a co-author of the statement, said Wednesday that the group is “not urging” impeachment as such, but “our view is more like, if something is to be done about it, here are the facts.”

The lawyers wrote, “We call on Congress to conduct robust, bipartisan oversight to ensure that the threats posed by ongoing foreign malign activities are addressed as matters of the highest priority as we increasingly near the 2020 election.”

In addition, they said, “We believe the framers of the Constitution would have viewed the totality of this conduct as evidence of high crimes and misdemeanors. Accordingly, Congress, which carries its own constitutional oversight responsibilities, should conduct further investigation.”

Asked if the signers’ stance might get them in trouble professionally, Gerson said that if anything, members of the group are “being rewarded” for speaking out. Administration officials, other lawyers and even some judges have contacted and applauded the members of the group confidentially, urging them to continue to advocate for the rule of law, he said.

Trump has rebuffed the rising dialogue about impeachment. “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court,” Trump said Wednesday. He did not articulate what action he would take, if any, if House Democrats did begin impeachment proceedings.

Members of Checks & Balances are not filing amicus briefs as a group, but some members, including Keisler, have appeared on briefs that take positions against the Trump administration. Keisler and fellow Sidley partner Carter Phillips were amicus parties on a brief filed Tuesday in California challenging the Trump administration’s use of a national emergency declaration to fund a border wall to which Congress has not allotted any funding.

Ayer, Gerson and Paul Rosenzweig, formerly senior counsel to Kenneth Starr in the Whitewater investigation, said in an op-ed Wednesday at USA Today that “Mueller’s report convincingly demonstrates systematic actions by the president to obstruct an ongoing criminal investigation, irrespective of whether a sitting president can be indicted.

Last year, Maleck, the King & Spalding associate in Washington, appeared on an MSNBC program to talk about her position as a conservative lawyer who’s questioning the president’s attacks on constitutional norms.

“What’s a little concerning is I do think people look at him and say, well, look at all these judges, we’re really shaping the judiciary, let’s sort of ignore it, he’s just sort of blustering. But his words have legal effect,” said Maleck, who clerked for Thomas in the 2015-2016 term. “When he tweets something, people respond. To me, it’s not enough to just sort of say we have Justice Kavanaugh, we have Justice Gorsuch so there’s nothing to see here. There’s plenty of things to see. When you start corroding constitutional norms over time, and switching out dialogue about it, all of a sudden we don’t have a functioning democracy any more.”

 

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