Don’t Stay – Go

May 30, 2017
Guest Post

*This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

by Brad Wendel, Professor of Law, Cornell Law School

I was very sorry to have to decline the invitation to appear on a panel at the ACS Convention entitled “Should I Stay or Should I Go? Deciding Whether to Serve in an Unfriendly Administration,” not least because of the allusion to a great song by the Clash. As it happens I considered exactly this issue. Although I am a lifelong Democrat of the squishy Clinton-Gore centrist variety, I would have no compunction about serving in the administration of, say, Mitt Romney, Marco Rubio or Scott Walker. I clerked for a conservative federal judge for whom I have the greatest respect, and have spent much of my career as a scholar defending the apolitical ideal of the rule of law – not the public interest or one’s personal integrity – as the central normative principle underlying legal ethics. But as a candidate and in the first several months of his presidency, in his words and in his actions, Donald Trump has consistently expressed hostility to separation of powers, the rule of law and traditional mechanisms of accountability. The best advice for an ethically conscientious lawyer, regardless of political ideology, is to steer well clear of service in this administration.

Many thoughtful people have addressed this question. David Luban and Deborah Rhode, two of the wisest legal ethicists in the business, both addressed the moral and psychological issues of serving a president who is openly contemptuous of the rule of law. Prolific national security law and policy commentator Ben Wittes wrote about this question several times, starting in summer 2016 – see his subsequent posts here, here, and here. More recently Jack Goldsmith and Quinta Jurecic, writing like Wittes on the Lawfare blog, revisited the issue in the wake of the firing of FBI Director James Comey. Finally, my colleague Mike Dorf wrote about the problem of “people with good intentions and reputations for integrity who take at-best questionable actions.” Three important points emerge from this discussion.

First, the psychology of individuals working in groups is subtle and pernicious. Everyone considering working in any organization, but particularly one predisposed to push legal and ethical boundaries, ought to read a short article by the eminent social psychologist John Darley. We know from studies of participants in the abuses at Abu Ghraib and corporate scandals like the chicanery at Enron that organizational wrongdoing is never a matter of a few proverbial bad apples. An initial act of corruption may be undertaken by a well-meaning member of the organization who sincerely believes it is permissible. Maybe that person is responding to express or tacit pressure from higher-ups, but it also may be the case that she is acting as a prototypical lawyer – acting out of a sense of loyalty to the client and believing that there are usually legal arguments that can be offered in justification of most actions. The second stage in the process is the interpretation of the initial wrongful act by others within the organization. They will tend to construe is through the framework of the organization’s values and commitments. In a well-functioning government agency these commitments could be to the rule of law or the constitution, but frequently the overriding value of the organization will be to demonstrate loyalty to the group and be a team player. One of the common themes in accounts of the Bush administration’s formulation of national security policy is the intense pressure from Dick Cheney, Donald Rumsfeld and David Addington to get with the program and not stand in the way of the administration’s goals. Finally, a menu of post hoc rationalizations for one’s actions, and the actions of others within the organization, are available, along with linguistic euphemisms and evasions. A conscientious lawyer can therefore go home and sleep well at night, not in a state of conscious bad faith, but with ethical qualms having been diminished by largely unconscious psychological processes.

Second, it is extremely important not to overestimate the extent of one’s ability to affect the steering of the ship of state. Much power within an organization is of the soft variety. Individuals need to build alliances to get things done, and all but the very top political officials within an agency have a boss whom they must influence. Acting alone, even the most ethically scrupulous lawyer cannot serve as an effective check against abuses of power. An individual who does not get with the program is likely to either be isolated, fired or thrown under the bus by Trump. When Nixon’s attorney general, Elliot Richardson, resigned rather than follow Nixon’s order to fire Special Prosecutor Archibald Cox, his resignation was a pivotal moment in the changing public perception of the Watergate burglary. By contrast, the resignation of most lower-ranking lawyers would go unnoticed by most members of the public. As Wittes puts it, most lawyers entering government service are not people of “sufficient independent stature and public regard that [they] can actually push back in a fashion that’s meaningful.” For the rest of us, the threat of exit does not amplify our voice. Loyalty thus remains the most salient option, along with all of the unconscious mechanisms of cognitive dissonance reduction that ensure we will not notice a gradual slide into serious wrongdoing. Given Trump’s history of serving up his own associates as scapegoats, the lack of any real power to resist abuse should give lawyers pause about working for this administration.

The third point has been the least remarked upon, particularly given the attention rightly paid to the firing of Sally Yates and James Comey. But it is useful to keep in mind that the federal government employs a huge number of lawyers, most of whom will have nothing to do with advising on, or defending in litigation, the worst of Trump’s actions. A lawyer working for the U.S. Postal Service, the Federal Aviation Administration, or the Federal Communications Commission are unlikely to be asked to do anything unlawful. The discussion of serving in the administration can occasionally sound elitist, as if everyone may have the opportunity to be the next deputy attorney general or an attorney-advisor in the Office of Legal Counsel. It is true, however, that even lower-level lawyers in some agencies, such as the Department of Homeland Security and the Justice Department, may be called upon to provide substantial assistance in conduct that is potentially unlawful or at least an abuse of power. 

The only advice I will add to what others have already said – and much better than I could have – is that government lawyers should not forget that they are subject to the same professional obligations as other lawyers. These include stringent fiduciary duties of confidentiality and loyalty which preclude certain types of resistance to perceived abuses by political officials. Some lawyers, for example, seem to romanticize whistleblowers and fancy themselves the next Daniel Ellsberg. Other lawyers may wish to engage in acts of “bureaucratic resistance from below” or even what Duncan Kennedy famously described as the politicization of legal practice (although Kennedy was talking about progressive law students going to work for large corporate law firms). The law governing lawyers is its own highly specialized field of practice, and one should not assume that following one’s moral compass is a sufficient research strategy for determining one’s legal obligations. Professional responsibility casebooks are full of lawyers who thought they were doing the right thing in ordinary ethical terms, but got tripped up on some technical aspect of the law of lawyering. The law respecting government lawyers’ responsibilities is particularly complex, and sometimes uncertain, so lawyers should do careful legal research before pursuing a strategy motivated by moral concerns.