If Trump Wins, His Allies Want Lawyers Who Will Bless a More Radical Agenda
Close allies of Donald J. Trump are preparing to populate a new administration with a more aggressive breed of right-wing lawyer, dispensing with traditional conservatives who they believe stymied his agenda in his first term.
The allies have been drawing up lists of lawyers they view as ideologically and temperamentally suited to serve in a second Trump administration. Their aim is to reduce the chances that politically appointed lawyers would frustrate a more radical White House agenda — as they sometimes did when Mr. Trump was in office, by raising objections to his desires for certain harsher immigration policies or for greater personal control over the Justice Department, among others.
Now, as Trump allies grow more confident in an election victory next fall, several outside groups, staffed by former Trump officials who are expected to serve in senior roles if he wins, have begun parallel personnel efforts. At the start of Mr. Trump’s term, his administration relied on the influential Federalist Society, the conservative legal network whose members filled key executive branch legal roles and whose leader helped select his judicial nominations. But in a striking shift, Trump allies are building new recruiting pipelines separate from the Federalist Society.
These back-room discussions were described by seven people with knowledge of the planning, most of whom spoke on the condition of anonymity to describe private conversations. In addition, The New York Times interviewed former senior lawyers in the Trump administration and other allies who have remained close to the president and are likely to serve in a second term.
The interviews reveal a significant break within the conservative movement. Top Trump allies have come to view their party’s legal elites — even leaders with seemingly impeccable conservative credentials — as out of step with their movement.
“The Federalist Society doesn’t know what time it is,” said Russell T. Vought, a former senior Trump administration official who runs a think tank with close ties to the former president. He argued that many elite conservative lawyers had proved to be too timid when, in his view, the survival of the nation is at stake.
Such comments may surprise those who view the Federalist Society as hard-line conservatives. But the move away from the group reflects the continuing evolution of the Republican Party in the Trump era and an effort among those now in his inner circle to prepare to take control of the government in a way unseen in modern presidential history.
Two of the allies leading the push are Stephen Miller, Mr. Trump’s former senior adviser, and John McEntee, another trusted aide whom the then-president had empowered in 2020 to rid his administration of political appointees perceived as disloyal or obstructive.
The nonprofit groups they are involved in are barred by law from supporting a candidate, and none of the work they are doing is explicitly tied to Mr. Trump. But Mr. Miller and Mr. McEntee remain close to the former president and are expected to have his ear in any second term.
Mr. Trump himself, focused for now on multiple criminal and civil cases against him, appears disengaged from these efforts. But he made clear throughout his term in office that he was infuriated by many of the lawyers who worked for him, ranting about how they were “weak” and “stupid.”
By the end of his term, lawyers he appointed early in his administration had angered the White House by raising legal concerns about various policy proposals. But Mr. Trump reserved his deepest rage for the White House and Justice Department legal officials who largely rejected his attempts to overturn the 2020 election, according to people who spoke with him. Casting about for alternative lawyers who would tell him what he wanted to hear, Mr. Trump turned for that effort to a group of outside lawyers, many of whom have since been indicted in Georgia.
People close to the former president say they are seeking out a different type of lawyer committed to his “America First” ideology and willing to endure the personal and professional risks of association with Mr. Trump. They want lawyers in federal agencies and in the White House who are willing to use theories that more establishment lawyers would reject to advance his cause. This new mind-set matches Mr. Trump’s declaration that he is waging a “final battle” against demonic “enemies” populating a “deep state” within the government that is bent on destroying America.
There were a few lawyers like that in Mr. Trump’s administration, but they were largely outnumbered, outranked and often blocked by more traditional legal conservatives. For those who went to work for Mr. Trump but grew disillusioned, the push to systematically install Trump loyalists who may see the law as malleable across a second Trump administration has been a cause for alarm.
John Mitnick was appointed by Mr. Trump as general counsel of the Homeland Security Department in 2018. But he was fired in 2019 as part of a broad purge of the agency’s leaders — whom Mr. Trump had installed — and was replaced by one of Mr. Miller’s allies.
Mr. Mitnick predicted that “no qualified attorneys with integrity will have any desire to serve as political appointees” in a second Trump term, and that instead it would be “predominantly staffed by opportunists who will rubber-stamp whatever Trump and his senior White House staff want to do.”
In many ways, the Federalist Society has become synonymous with the Republican establishment, and its members’ most common interests — including pushing an originalist interpretation of the Constitution and federal statutes — can be distinct from the whims and grievances of Mr. Trump himself. Its membership dues are low, and politically ambitious Republican lawyers of various stripes routinely join it or attend its events. Many of the more aggressive lawyers the Trump allies are eyeing have their own links to it.
But after both the legal policy fights inside the Trump administration and the refusal by the group’s most respected luminaries to join Mr. Trump’s efforts to overturn the 2020 election, the phrase “Federalist Society” became a slur for some on the Trump-aligned right, a shorthand for a kind of lawyerly weakness.
Hard-right allies of Mr. Trump increasingly speak of typical Federalist Society members as “squishes” too worried about maintaining their standing in polite society and their employment prospects at big law firms to advance their movement’s most contentious tactics and goals.
“Trump and his administration learned the hard way in their first term that the Democrats are playing for keeps,” said Mike Davis, a former congressional aide who helped shepherd judicial nominees during the Trump administration and has become a close ally of the 45th president. “And in the Trump 47 administration, they need much stronger attorneys who do not care about elite opinion who will fight these key cultural battles.”
A Fraught Union
When Mr. Trump wrested the 2016 Republican presidential nomination from the party’s old guard, it was unclear whether social conservatives would turn out in the general election to vote for a thrice-married New Yorker who had cultivated a playboy reputation and once described himself as “very pro-choice.” But Mr. Trump won their support by essentially striking a deal with legal conservatives: He agreed to fill Supreme Court vacancies from a list of prospects compiled by a small number of movement stalwarts.
This group helping to shape the judiciary included Leonard A. Leo — arguably the most powerful figure in the conservative legal movement and a leader of the Federalist Society — and Donald F. McGahn II, Mr. Trump’s 2016 campaign general counsel and first White House counsel. With a seat already open after the death of Justice Antonin Scalia, the move worked: Exit polls showed that court-focused voters helped secure Mr. Trump’s narrow victory.
Along with the Republican leader in the Senate, Mitch McConnell of Kentucky, Mr. Leo and Mr. McGahn — and later Pat A. Cipollone, Mr. Trump’s second White House counsel — created an assembly line for turning Federalist Society-style lawyers into appeals court judges and Supreme Court justices.
But the union between Mr. Trump and the conservative legal establishment could be more fraught than it sometimes appeared. As his presidency wore on, Mr. Trump attacked and sidelined many of the lawyers around him. That included Mr. Leo.
One episode, described by a person familiar with the incident, illustrates the larger chill.
In January 2020, Mr. Leo was having dinner at Mar-a-Lago when Mr. Trump strode up to his table. The president stunned Mr. Leo, publicly berating him and accusing him of recommending the deputy attorney general, Rod J. Rosenstein, who appointed a special counsel to investigate ties between the Russian government and the Trump campaign.
Taken aback, Mr. Leo protested that he had actually suggested someone else for the position — Mr. Cipollone. Mr. Trump walked away without apologizing.
Nearly a year later, when Mr. Trump was trying to enlist legal assistance for his efforts to overturn his 2020 election loss, he reached out three times to Mr. Leo. But Mr. Leo declined to take or return Mr. Trump’s calls, and has since only dealt with him through others.
A spokesman for Mr. Trump did not respond to repeated requests for comment.
In a statement, Mr. Leo said, “I have nothing to say regarding his current efforts, but I’m just grateful that President Trump transformed the Supreme Court and the federal judiciary in his first term.”
Mr. Mitnick’s experience underscores the style of lawyering that Trump allies saw as too cautious. His role as the top lawyer at the Department of Homeland Security put him in the path of increasingly aggressive policy proposals from a top White House adviser to Mr. Trump, Mr. Miller.
Mr. Miller, who is not a lawyer, is known for his vehement opposition to immigration. Mr. Mitnick and Mr. Miller are said to have clashed, directly and indirectly, over legal risks raised by regulatory and policy actions emanating from the White House, including separating migrant children from their parents and transporting migrants to so-called sanctuary cities.
In 2019, the White House purged the leadership ranks of the Homeland Security Department, firing Mr. Mitnick. Mr. Trump ultimately installed as his replacement Chad Mizelle, who had been out of law school just seven years but was a close Miller ally.
Like numerous other positions filled later in Mr. Trump’s term, Mr. Mizelle was appointed as “acting” general counsel, sidestepping a Senate vetting and confirmation process that would most likely have closely scrutinized whether he was qualified for the job.
With Mr. Mizelle acting as the department’s top lawyer when the Covid-19 pandemic arose, the Trump administration seamlessly invoked emergency powers to flatly refuse to consider the petition of any asylum seeker arriving at the southern border.
Seeking ‘America First’ Lawyers
Mr. Miller has stayed close to Mr. Trump and is expected to play an even more important role in shaping policy if Mr. Trump returns to power.
While out of office, Mr. Miller has been running a foundation focused on suing the Biden administration and recruiting a new generation of “America First” lawyers, with some from attorney general and solicitor general offices in Texas and other Republican-controlled states. “America First” Republicans are often opposed to both legal and illegal immigration, protectionist on trade and skeptical of international alliances and military intervention overseas.
One first-term Trump lawyer who would most likely serve in a second term is Mark Paoletta, who served as general counsel at the Office of Management and Budget and worked closely with Mr. Vought, the agency’s director. The O.M.B. team saw itself as an island of facilitators within an executive branch they believed was too quick to tell Mr. Trump that his ideas were unachievable or illegal.
Together, Mr. Vought and Mr. Paoletta came up with the idea of having Mr. Trump declare a national emergency and invoke special powers to spend more taxpayer money on a border wall than Congress was willing to appropriate.
Mr. Paoletta also believed that Mr. Trump could have exerted greater personal control over the Justice Department, although Mr. Paoletta said in an interview that he did not advocate using the presidency’s command over federal law enforcement for partisan and personal score-settling. He and other advisers likely to follow Mr. Trump back into power view White House authority to direct the Justice Department as proper under the so-called unitary executive theory. It holds that presidents can directly command the entire federal bureaucracy and that pockets of independent decision-making authority are unconstitutional.
“I believe a president doesn’t need to be so hands-off with the D.O.J.,” Mr. Paoletta said, adding: “It’s not an independent agency, and he is the head of the executive branch. A president has every right to direct D.O.J. to look at items that are his policy priorities and other matters of national importance.”
Mr. Trump is not known for pondering legal philosophy. But he has found common cause with lawyers who have a sweeping view of presidential power.
In his 2024 campaign, Mr. Trump has promised to “appoint a real special prosecutor to go after” President Biden and his family — shattering the post-Watergate norm of Justice Department independence. More than any legal policy statement on his campaign website, retribution may be the closest thing to a governing philosophy for Mr. Trump as he seeks a second term.
Mr. Trump has rarely looked closely at a lawyer’s area of specialty. Instead, he has often looked at whether a particular lawyer can help him gain something he wants. He spent much of his first term railing against the lawyers who worked for him and wondering aloud why none of them could live up to the memory of his notoriously ruthless mentor, Roy Cohn, who represented Mr. Trump in his early business career in New York.
When he sought to overturn the 2020 election, Mr. Trump was unsatisfied with his government lawyers, including his second White House counsel, Mr. Cipollone, who largely rejected his efforts to subvert the results. Mr. Trump turned to a different set of outside lawyers.
Those lawyers included Rudolph W. Giuliani, John C. Eastman, Kenneth Chesebro, Jenna Ellis and Sidney K. Powell, all of whom have since been indicted in Georgia in a racketeering case that charged the former president and 18 of his allies with conspiring to overturn his election loss there in 2020. Ms. Powell, Mr. Chesebro and Ms. Ellis have pleaded guilty.
Mr. Trump was also infuriated that the justices he had put on the Supreme Court declined to repay his patronage by intervening in the 2020 election. As Mr. Trump criticized the court, Mr. Leo with the Federalist Society is said to have told associates he was disappointed that the former president’s rhetoric made his judicial appointment record look “transactional,” aimed at advancing Mr. Trump’s personal interests rather than a broader philosophical mission.
In the same way, Mr. Trump had a falling-out with his attorney general, William P. Barr, who refused to falsely say that the Justice Department had evidence of widespread voter fraud. After Mr. Barr resigned, his deputy and successor, Jeffrey A. Rosen, also refused to throw the department’s weight behind Mr. Trump’s claims. Mr. Trump then explored the idea of installing Jeffrey Clark — an official who was willing to raise concerns about purported election fraud — as acting attorney general.
Mr. Clark has also been indicted in the Georgia case, but remains in favor with Mr. Trump and has met with the former president at his private clubs. Over the summer, at Mr. Trump’s golf club in Bedminster, N.J., Mr. Clark attended a fund-raiser for the people who have been imprisoned for rioting at the Capitol on Jan. 6, 2021.
Mr. Clark will most likely be in contention for a senior Justice Department position in any second Trump administration, depending on the outcome of his legal travails. He has written a constitutional analysis, titled “The U.S. Justice Department Is Not Independent,” that amounts to an intellectual blueprint for direct presidential control of federal law enforcement.
He declined to comment. On a conservative podcast last year, Mr. Clark said that “extraordinary times call for extraordinary, responsive legal creativity.”
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