May 9, 2017

Private: Serving in the Trump Administration

2017 ACS National Convention, Deborah Rhode, ethics

*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 Deborah Rhode, Ernest W. McFarland Professor of Law and Director of the Center on the Legal Profession, Stanford Law School

“It depends,” is the most irritating answer that an ethics professor can give to difficult ethical questions. But sometimes it is the only one that makes sense, and that is my response to whether socially responsible lawyers can, or should, serve in the Trump administration. The key factors are what the position is and how much ability the lawyer has to accomplish ethically defensible ends.

I begin from the premise that it will not serve the public interest if the only lawyers in governmental positions are those who share Trump’s views. There are many relatively apolitical legal jobs in the federal government in which attorneys can do “good” work, in both a descriptive and prescriptive sense. And there are even some political jobs, for which, as New York Times columnist Russ Douthat has argued, if Trump is willing to make “responsible appointments, the good of the world requires that responsible people accept them.” Progressive administration lawyers can be the front line of resistance to executive abuse. They can supply passive resistance to efforts to roll back important procedural and substantive protections. And they can effectively enforce the safeguards that are not under siege. To take an obvious example, the enforcement division of the EPA urgently needs attorneys who have environmental commitments that their president may not share.

Yet the only way ethically responsible lawyers can ethically serve in this administration is if they are prepared to resign when resistance is ineffective and the moral stakes are substantial. It is never enough to rationalize their complicity on the ground that their actions are ensuring a lesser evil and that their successors would be worse. As Hannah Arendt warned a half century ago, the weakness of that argument “has always been that those who choose the lesser evil forget very quickly that they chose evil.”

Contemporary psychological research confirms Arendt’s concern. Borrowing from Leon Festinger’s theory of cognitive dissonance, psychologists note that when people face pressure to act in ways that are inconsistent with their values, an uncomfortable state of tension results. Individuals generally care about being and appearing ethical. When that desire clashes with desires for recognition, influence, advancement, people often attempt to reduce the “cognitive dissonance” by rationalizing unethical conduct. As philosopher Bernard Williams has noted, the rationalization of “working from within” has kept many “queasy people tied to many appalling ventures for remarkably long periods.” David Luban accordingly advises anyone contemplating service in the Trump administration, “don’t let the words lesser evil pass your lips.”

The risks are compounded when repeated exposure to ethically problematic conduct produces what psychologists describe as ethical numbing. The process is incremental; small but morally troubling acts can pave the way for greater ones. This is leads to an escalation of commitment that is sometimes labeled the “boiled frog problem.” Legend has it that a frog will jump out of boiling water, but when placed in a pot of tepid water that is gradually heated, the frog will calmly boil to death. The folk wisdom is wrong about frogs but right about humans. All of these dangers are heightened in environments where colleagues find such conduct unproblematic and reward team players. A cottage industry of organizational research finds that individuals respond to cues from peers and leaders, and often replicate their behaviors.

Lawyers who find themselves in such environments need to be vigilant about maintaining their moral compass. They should draw lines in the sand and be willing to accept personal responsibility for the consequences of their actions. And they should ask whether those consequences are consistent with fundamental constitutional principles, legal mandates and personal values. One strategy is the mental exercise colloquially known as the “60 Minutes” or “New York Times” test: how would this decision look on prime-time television or the front page of an international newspaper as presented by a skeptical reporter? And if lawyers would feel shamed by that transparency, they should be prepared to resign and to make their protest heard.       

Some of the legal profession’s finest moments have involved such resignations. One worth recalling occurred during the Nixon administration. Archibald Cox, the first special prosecutor of the Watergate break-in, sought to compel Nixon to produce tapes of White House conversations concerning the cover-up. When Nixon asked Attorney General Elliot Richardson to fire Cox, Richardson instead resigned, as did his deputy William Ruckelshaus. The official next in line then followed the President’s orders and abolished the office. The public was outraged over what became known as the “Saturday Night Massacre.” Nixon’s approval ratings plummeted, and he yielded to pressure to reinstate a special prosecutor. On advice of White House counsel, he also did not destroy the tapes and ultimately turned over inculpating evidence. Under threat of impeachment, he resigned the presidency. That outcome might have been quite different if lawyers had not been willing to stand on principle.

Of course, virtue is not always its own reward, and not all morality plays have happy endings. President Trump suffered no devastating repercussions after firing acting Attorney General Sally Yates for her refusal to enforce his ban on travel from predominantly Muslim countries. But her ouster sets the right example. In a letter explaining her decision, she stated, “I am responsible for ensuring that the positions we take in court remain consistent this this institution’s solemn obligation to always seek justice and stand for what is right.” This administration needs more courageous counsel willing to do the same. They should be willing to take public service positions as long as they can in fact serve the public in good conscience, and as long as they can be self-aware and self-critical about what that requires.