Opinion Why MAGA elites are facing a fresh set of disasters
But on the other screen, the legal causes championed by elites associated with the GOP’s MAGA wing are facing a string of disastrous setbacks.
In a sense, this story is more than half a century old. Going back to the 1950s and ’60s campaign to impeach liberal Chief Justice Earl Warren, the populist right has long relied on haphazard legal bomb-throwing that pleases the masses but steadily fails to yield results. By contrast, other conservative elites adopted a long-game plan of legal institution-building that — unfortunately for liberals — is delivering in a big way.
Consider a leading MAGA cause, the impeachment of Homeland Security Secretary Alejandro Mayorkas. This is backed by MAGA leaders like Rep. Jim Jordan of Ohio, who chairs the Judiciary Committee and is a reliable ally of former president Donald Trump.
But some high-profile legal conservatives have now dismissed the case for impeaching Mayorkas. Lawyer David Schoen, who defended Trump during his second impeachment, told the Daily Caller, a right-wing website co-founded by Tucker Carlson, that impeaching Mayorkas might not be justified, suggesting instead Republicans hold hearings if they oppose his “policies and actions.”
Similar sentiments came from Bob Barr, a former congressman who led the impeachment of President Bill Clinton, who questioned whether there is even a “colorable basis” for impeachment to give it a “degree of credibility.”
There isn’t. As law professor Frank Bowman demonstrates, the claim from some Republicans that Mayorkas betrayed the duties of his office — which they say constitutes impeachable “high crimes and misdemeanors” — is nonsense. The real motive is that he is executing Biden’s immigration policies.
It seems obvious that Republicans such as Rep. Marjorie Taylor Greene (Ga.), the public face of impeachment, don’t care if impeachment has legal legitimacy. But some less extreme House Republicans have expressed strong skepticism, and conservative legal opposition seems likely to render them less likely to go along.
On another front, Lin Wood, a leading lawyer pushing Trump’s effort to overturn his 2020 loss in court, just announced that he is relinquishing his law license. This is widely seen as a sign that Wood, who trafficked in wild-eyed MAGA conspiracy theories, doesn’t think he can avoid disbarment.
Meanwhile, Trump coup lawyer John Eastman is facing disbarment proceedings. He could lose his license, not just for making false statements but also on the broader charge of fabricating a legal rationale for stopping the electoral count in Congress.
And Trump loyalist Jeffrey Clark is facing similar proceedings for pressuring the Justice Department to fake a rationale for reversing the election. As MSNBC’s Steve Benen puts it, that means a “trifecta” of Trump coup lawyers could all get washed out of the profession.
On top of all that, the Supreme Court recently invalidated the theory, pushed by many elite MAGA die-hards, holding that state legislatures have quasi-unlimited powers over how elections are run. All this leaves less room for MAGA-adjacent GOP lawyers to find their own Eastman-like niches in 2024. And even some Republicans admit the indictment of Trump raises serious questions about his misconduct, suggesting that MAGA-approved legal defenses of him will get much harder to sustain.
On yet another front, many of Florida Gov. Ron DeSantis’s initiatives have been halted in court. DeSantis markets himself as the guy with the toughness to implement a MAGA agenda, but developing solid foundations to put MAGA governing impulses into law is proving tougher than expected.
Those MAGA failings have a historical precursor, said Steven Teles, a political scientist who wrote a history of the conservative legal movement. Some on the right have long embraced a “strategy of opposition to legal liberalism,” Teles noted, that was essentially the legal “version of populism,” like the doomed impeach-Warren crusade.
By contrast, other elite conservatives opted for transforming the legal profession from within. Teles says this entailed painstaking institution-building, and the creation of a canon of legal opinion that might flower into Supreme Court rulings once the time was right. That’s what happened after Trump’s presidency and the pilfering of Merrick Garland’s seat created a 6-3 conservative supermajority, leading to the end of abortion rights.
Those efforts were “based on the idea of operating within something that’s cognizable as legal professionalism,” Teles told me. By contrast, he said, these MAGA legal tactics in the more populist strain amount to “gonzo legalism.”
“MAGA has had some successes,” Teles said, “but building elite professionalism is not one of them.”
The divide can be overstated. Many traditional legal conservatives cheerfully hitched their long-term project to Trump’s presidency, and many of their cherished initiatives — from Bush v. Gore to the swiped Garland seat to the Supreme Court’s gutting of voting rights — are hardly more unsullied than anything the MAGA project might dream up.
But still, there does seem to be a real schism between the successes elite conservatism is enjoying and the fiascoes that MAGA elites are facing. It may seem to liberals like a negligible consolation prize, but these setbacks are a big story — and a relatively positive one.
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