Bench Memos

Misleading and Dishonest Reporting from Jeffrey Toobin

Over at The New Yorker’s blog, Jeffrey Toobin has a ridiculous post that distorts the facts and repeats paranoid conspiracy theories. Toobin’s beef is with the Federalist Society, the venerable educational organization that provides a forum for discussion of the most important conservative and libertarian legal issues, and Chuck Cooper, one of 22 speakers at its Second Annual Executive Branch Review Conference.

As Toobin concedes, events sponsored by the Federalist Society feature “high-level intellectual combat” between panelists from right and left. Having attended multiple prior conferences, which invariably offer excellent panel discussions (and usually offer CLE credit), I can tell you that the liberal and progressive speakers almost uniformly praise the Federalist Society for sponsoring a robust exchange of ideas and open debate among a wide variety of views.

Since Toobin knows all that, his characterization of the conference as “fevered” is inexcusable. (Watch the panels for yourself on YouTube.) Sure, there were intellectual fireworks, but that’s what every Federalist Society panel is about: robust intellectual debate. Panelists take reasoned legal positions and argue with the other panelists about legal substance. That’s something that Toobin can see at every Federalist Society event, and it’s really special, since open debate like that doesn’t happen much elsewhere.

Finally, Toobin gets to his primary target, former assistant attorney general in charge of DOJ’s Office of Legal Counsel Chuck Cooper. Cooper was one of three speakers at a lunchtime panel opining on the role of the coordinate branches of the government in checking the executive branch. Cooper gave his speech immediately between George Mason law professor Neomi Rao and Yale law professor William Eskridge (himself no conservative), both of whom gave provocative and illuminating speeches.

To hear Toobin tell the tale, Cooper gave a fiery speech endorsing impeachment. But that never happened. Watch the speech for yourself. Cooper was certainly the least academic of the panelists (he was, after all, the only non-academic), but, as you can see for yourself, he said nothing “radical.” Toobin completely ignores the tone and substance of Cooper’s speech, neither of which supports hysterical fear-mongering. As for impeachment talk, it’s hard to imagine an entire panel discussion devoted to Congress’s role in constraining the executive without discussing the legalities of the one direct mechanism that the Constitution actually gives to Congress for that purpose. Cooper carefully laid out the factual and legal analysis, none of which Toobin disputes on the merits, including ample quotes from liberal law professors who engaged with the impeachment issue during previous administrations.

But Cooper actually argued against impeachment, calling impeachment a “drastic” measure, and instead urging a bicameral censure resolution that would have no legal effect. Radical? Hardly. (Toobin notes that Cooper told him he doesn’t support impeachment.) But instead of reporting on, or even sparring with, any of Cooper’s arguments he opted to take this cheap shot at Cooper and the Federalist Society:

Still, the impeachment talk presents yet another illustration of the conservative movement’s radicalization. Once, it was only Tea Party zealots (and birther lunatics) who talked about Obama’s illegitimacy. Now it’s the grownups in the Federalist Society.

Toobin’s piece isn’t legal journalism; it’s click-bait for left-wing bloggers and pundits. He invokes conspiracy theories while claiming to repudiate them, misrepresents both tone and substance of the conference, and even slips in a jab at Cooper’s personal life and his views on same-sex marriage. His piece is ultimately little more than a misleading and dishonest attempt to demonize Chuck Cooper and the Federalist Society as part of what he calls “the conservative movement’s radicalization.” Hopefully his readers will pay more attention to the facts and arguments than he did.

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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