The Strange Case of the One-Good-Moment Conservative

During a phone call a couple of weeks ago with Professor Dorf, I brought up a then-recent New York Times op-ed by Jack Goldsmith, who is currently a professor at Harvard Law School and was formerly a high-ranking official in the George W. Bush Administration. Titled "The Prosecution of Trump May Have Terrible Consequences," the piece was a bizarro-world argument that Republicans will become vengeful and unhinged because of what is happening to Trump.

I repeat: "become."  I am not joking.  Wrapping up an excellent critique of Goldsmith's piece, Jonathan Chait wrote:

Goldsmith’s op-ed is like a documentary run through the film projector backward. Jack Smith prosecuting Trump leads to Donald Trump coming to power as deranged crowds bray for the imprisonment of his opponent. He is right that the outcome from Smith’s prosecution will be terrible. But worse than the alternative? How could it be worse?

Nicely put.  Goldsmith's entire piece is simply odd, repeating familiar and weak conservative talking points ("the criminalization of politics") in service of something that he does not even seem to believe, given that he does not bother to bring up the consequences of failing to prosecute Trump.

The weakness of the piece was unexpected enough to make me ask Professor Dorf if he had any idea what in the world Goldsmith could have been thinking, or why he even bothered to write it.  I pointed out that although Goldsmith is a conservative, I had the impression that he was not the kind of conservative who would reliably be in the tank for Trump.

Professor Dorf did not pretend to know the answer, but he noted that Goldsmith appears to be a member of a group that I hereby dub the One-Good-Moment Conservatives.  Having now had some time to ponder the phenomenon, I think that discussing this group in contrast to other conservative typologies could be a surprisingly interesting exercise.

To be clear, Goldsmith's one good moment was indeed quite good: as a Bush White House lawyer, he withdrew the infamous Bybee Torture memos, after which he resigned from the Administration.  This was especially notable because only months before his resignation, Goldsmith had gone all in on the extreme Unitary Executive theory and argued that Bush "has inherent constitutional authority" to order warrantless wiretapping in the so-called war on terror.  And as an Atlantic piece from 2007 emphasizes, Goldsmith has been uber-conservative throughout his career, in a way that was far outside even the Republican mainstream.

Yet here he is, years later, dismissing the charges against Trump as "novel" (yes, that is going to be true when a person commits never-before-contemplated crimes) and basically arguing that Trump must be allowed to skate in order to prevent his supporters from becoming unhinged.  Again, Goldsmith had one very good moment, but there is nothing to indicate that he had anything like an epiphany about the nature of the threat that the modern Republican Party poses to the rule of law -- a threat, by the way, that was present long before Trump distilled it to its ugliest essence.  (See, e.g., Cheney, Dick.)

A much more famous member of the One-Good-Moment Conservatives is, of course, Rudy Giuliani.  There has been a lot of discussion lately asking "what happened" to Giuliani, to which the answer is: What do you mean "happened"?  He was always awful.  New York Times columnist Jamelle Bouie weighed in on this discussion last week, emphasizing the ugly racial politics that Giuliani played in his rise to become mayor of New York City.  Giuliani was also a huge champion of the nakedly racist stop-and-frisk policy (which former Mayor Michael Bloomberg then made even worse).

I would add that Giuliani was terrible in more pedestrian but important ways, such as firing a police commissioner for the sin of being portrayed in the press as in any way responsible for New York's falling crime rate -- a decline that was part of a nationwide trend but that Giuliani insisted was entirely his own doing.  (I guess he was thinking: "I alone have fixed it.")  He was also a classic bully, berating citizens who called into his radio program.  And back when he was a prosecutor, he mastered the art of turning the perp walk into an unpaid campaign advertisement.  He has been, throughout his life, at worst an authoritarian and at best a creep.

More interestingly, Giuliani's one good moment was in fact not particularly meaningful.  For one thing, his camera-seeking actions on and after the 9/11 attacks were essentially a matter of having the spotlight ceded to him by an AWOL President Bush.  Essentially handed the bullhorn by default, he never let it go.  He later tried to blame an aide for his terrible decision to put New York's emergency management headquarters in a building that was an obvious target for terrorism and then downplayed the health effects of the air pollution in Lower Manhattan.  Oh, and he tried to use 9/11 as a reason to give himself extra time in office, saying that the election to replace him should be indefinitely delayed by the emergency.  At least Bloomberg had the decency to ram through actual legislation to allow himself to buy an extra term.

It turns out that Oprah Winfrey is the person who coined the term "America's Mayor."  I suspect that she will not ask to have that included in her obituary.  But even if I agreed with people who are willing to give Giuliani more credit than I am, he certainly has spent his entire time since then proving that he had only that one out-of-character moment in him.

Which brings us to the even more obvious candidate for one-good-momentcy: Mike Pence.  Whatever good things one might say about Giuliani, there is little doubt that someone (or many people) would have stepped up and taken action in 2001 -- maybe not as well as he did (viewed from the perspective of those who would defend Giuliani), but it would have happened one way or another.  There was much to be done, and it was only a question of how, not if, it would happen.

Pence, however, was truly The One and Only Guy who stood between the rule of law and constitutional disaster.  Had he made a different decision on January 6, 2021, our descent into authoritarian chaos would have already happened.  I have long predicted that that will happen soon in any event, but every day that we delay it is a blessing.

Even so, nothing about the experience of being chased by a baying mob calling for him to be hanged has changed Pence.  Pence has indicated that he will support Trump in 2024 if the Republicans renominate him.  Not only have we learned that Pence was not faking his extremely conservative views all this time for political advantage (as he sticks with his smarmy piety in support of repressive social and economic policies), but we know that he somehow imagines that putting Trump back in office will not end in a dictatorship.  Great moment, no followup.

There seem to be two other notable categories of conservatives in the United States: the This-Is-Not-My-Beautiful-House conservatives and the Gone-Around-the-Bend conservatives.  The former is populated by NeverTrumpers and in large measure populates the otherwise left-of-center MSNBC cable channel's talk lineup, along with some other major news sources.  Joe Scarborough, for example, is a former Contract-on-America Gingrich-supporting congressman.  (Gingrich, I suppose, is in yet another category: the Always-Been-Around-the-Bend Conservatives.  Heck, he designed and built the road that goes around that bend.)

Scarborough and former congressman David Jolly, former Bush II aide Nicolle Wallace, neocons Jennifer Rubin and Max Boot of The Washington Post, and so on have had various degrees of awakening, with some continuing to insist that they are true conservatives (Scarborough is a major debt/deficit scold, for example) while others like Rubin seem to have simply become liberal in their views.  All, however, reject the Trumpian nightmare that their former cohorts continue to support.

The latter group, the Gone-Around-the-Bend Conservatives, is an unusually motley crew.  Kevin McCarthy might or might not qualify, depending on how much of what he is now doing and saying is based on anything other than careerism.  But even if he is in it only for the Speakership, one has to go around a very dangerous bend to go from rightly blaming Trump for the January 6 attack to being his water carrier.

Another puzzling character is my former colleague Jon Turley, who went from appearing regularly on Keith Olbermann's old MSNBC show and making interesting and not-obviously-partisan legal arguments, to offering laughable arguments in defense of Trump in his first impeachment, and finally now to amplifying the silly argument that Jack Smith wants to "take a hatchet to the First Amendment in this quest to nail Trump."  Although I know far less about him, it also appears that Trump lawyer Kenneth Cheseboro was once firmly on this side of the bend; but at some point he stepped on the gas and careened into oblivion.  Other public figures are a bit more difficult to describe, with Bill Maher's increasingly hard-edged anti-progressivism making him a candidate, even though he was never in fact anything but a self-satisfied troll (before they were even called trolls).

Finally, I have to ask about Lindsey Graham.  None of the above?  What can one say about a person who changes even more readily than McCarthy, and for a much lower payoff?  He has flip-flopped about Trump several times, tearfully defending him from this year's run of indictments even as he once insisted that Trump was the problem.  Of course, anger and tears are a bit of a signature for Graham, who completely lost it during the Kavanaugh hearings in 2018.  John McCain's one-time wing man might be the most unique character in recent American politics, but not in a good way -- just as ambitious and dishonest as the worst of his colleagues, yet somehow able to make himself look more ridiculous than almost any of them.

The problem is that, no matter how they arrived at their current positions, there are more than enough people in the pro-insurrection, anti-rule of law conservative camp -- both those who take illegal actions and those who explain it all away -- that we might soon be ruled on a permanent basis by their minoritarian movement.