Before Donald Trump secured the Republican Party nomination in the summer of 2016, Lawfare and others hosted articles expressing concern about the potential impact of a Trump presidency on national-security and law-enforcement institutions—often focusing on the dilemma of whether or not career officials should continue to serve in a Trump administration. After the election, fears grew that Trump would shatter long-standing norms of decorum and governance, and the conversation continued. A loose consensus emerged: Career government employees could serve honorably under an ethically challenged president, but they—and their politically appointed superiors—would need to be prepared to resign if an illegal or unethical directive came their way.
This discussion remained hypothetical until it wasn’t. As the theoretical became the actual, some officers quit, while most stayed on the job. A few, however, have sought a way out of this stark dilemma by remaining in place and undermining the president from within his own administration.
They have deluded themselves. That path of subversion, even if initially well-intentioned, leads to an ethical minefield that should not be casually traversed.
This axiom emerged as I found myself struggling to come to grips with the actions of “Anonymous,” the senior administration official writing in September in the New York Times as “Anonymous” acted. While calling the president’s manner “detrimental to the health of our country,” Anonymous claimed to be part of a group plotting behind the president’s back to “preserve our democratic institutions while thwarting Mr. Trump’s more misguided impulses.” Bob Woodward’s recent book “Fear” described similar conduct by officials working in the White House: He wrote, for example, that White House economic adviser Gary Cohn Cohn “stole a letter off Trump’s desk” to prevent the president from pulling the United States out of a free trade agreement with South Korea. Former national security adviser H.R. McMaster recently seemed to confirm that account in September, endorsing Cohn’s actions as “wholly appropriate.”
In the weeks since the publication of Anonymous’s op-ed and Woodward’s book, my discomfort with these disclosures has rarely been far from the front of my mind. It resurfaced with a vengeance as I attended and interacted with the panelists of the “State of the Rule of Law in the U.S.” event hosted by the Brookings Institution on Oct. 3 and at the “Democracy Under Stress” event hosted by the National Security Institute at George Mason University on Nov. 1. Distinguished former government officials in both gatherings expressed sympathy with still-serving officials who are witnessing the violation of long-standing norms—and grappling with how to defend such norms without shattering other ones.
It’s easy to understand the temptation to seek a middle path, a compromise, something (anything) to avoid the binary choice of either resigning or following an unsavory directive. It’s not as simple as “doing the right thing”; in practice, the toughest calls involving our values are gut-wrenching decisions between two or more bad options, often with a generous helping of imperfect information thrown in. And a seductive middle path may be the worst option of all, sacrificing the moral benefits that would have come with taking a clear stand one way or the other.
My position on this derives in part from my work as a CIA intelligence officer, manager, and President’s Daily Brief briefer, as well as a desk officer at the State Department, all of which I left behind more than 10 years ago. Early on in my career, I rarely recognized ethical dilemmas as such. Often, I’d get through difficult decisions by choosing the best way forward without ever consciously putting the word “ethics” on the table.
A couple of roles helped my thinking to evolve. One was serving as FBI Director Bob Mueller’s daily CIA intelligence briefer. I began this work not long after the horrific attacks of 9/11. Director Mueller—and the FBI he ran—were under enormous pressure (as were many throughout government) to protect the country from what then seemed to be another inevitable attack.
I got to watch, up close, a highly talented and dedicated leader tackle difficult decisions, often with imperfect information, almost every day. He was then, and I strongly suspect he is now, a man closely tethered to the rule of law who never ducked the responsibility of making tough calls. He neither pushed his responsibility onto others, nor took on authorities he did not have by law or through norms of good governance. I cannot imagine a scenario in which he would have, for example, stolen a memo off the president's desk because he disagreed with the policy it contained. Several former senior FBI officials who worked intimately with Director Mueller in the decade after 9/11 have recently told me that they saw precisely what I saw: a nearly daily object lesson in ethical decision-making.
I also had the honor in the past decade to discuss with hundreds of national security and law enforcement officers the myriad ethical dilemmas they struggle with in their work. The details vary widely. Almost universally, however, their predicaments involved moments in which they needed to choose between options that all stank—while resisting the temptation of some apparent compromise that would allow them to avoid choosing either unsatisfying solution.
Let’s apply this to “Anonymous” and to the officials described by Woodward. These government actors, if faced with an unlawful or unethical directive, have a binary choice: faithfully serve the president, or resign. That’s it. Staying in office in order to commit sabotage against a democratically elected president acting lawfully, if not ideally—to protest the president’s violation of long-standing norms of governance by jettisoning a different one—is perilous.
Anonymous could have embraced whatever the president’s “misguided impulses” were, even while suspecting they were divorced from the principles of good government. The president was elected by the American people, after all; Anonymous was not. Or Anonymous could have resigned, even while suspecting that others would go ahead and carry out policies based on those same “misguided impulses” anyway. Sacrificing one’s moral core is not a job requirement. He or she could have left and then used that finely tuned moral compass to honor and support the national interest in a different way.
But, instead of making the hard ethical choice between those two paths, Anonymous chose a third way—to serve unfaithfully—and suggested that others in this administration did the same. They have been dutifully following the president’s orders when they passed some undefined test for appropriateness … and then actively undermining orders when that mysterious (personal) threshold was crossed.
Danger lies both in the arrogance one must have to believe himself or herself best positioned to make the judgment to draw such a line and in the confidence one must have to believe himself or herself best calibrated to know precisely where that line should be drawn. And a person needs both absolute arrogance and unmitigated confidence to substitute his or her political, ethical, and policy judgment for that of a duly elected president of the United States.
What is the limiting principle for such a violation of the norm of faithful service? Where does it stop—and with whom? Might someone use minor policy disagreements as excuses to subvert the chief executive? Stealing documents from the Oval Office to prevent presidential action crosses a rule-of-law line; the location of the new line could be almost anywhere. Or nowhere.
And how many, among millions of well-intentioned federal employees, should have the right to pick and choose which policies to dutifully enact and which to ignore? If Anonymous and others can authorize themselves to “keep bad decisions contained to the West Wing,” as the New York Times op-ed claimed, and if the economic adviser can appoint himself worthy to pilfer presidential papers, what about lower-ranking appointees? Situation Room personnel? White House interns? Does the rule of law, as it pertains to the chief executive’s authority, retain any meaning?
These questions highlight the danger in using any policy difference as an excuse to undercut the president instead of making a hard call between less comfortable options.
Of course, if there is an actual illegal or unethical presidential order, it cannot be executed. Here’s a reasonable path to follow in such a case, which may help national security and law enforcement officers avoid the urge to jettison the norm of faithful service:
Marshal your finest logic and argumentation, your sharpest rhetoric and persuasion, and whatever else it takes to convince the boss that this proposed act is unacceptable.
If he’d proposed the directive while somehow unaware of its illegal or unethical nature, he should appreciate your wise counsel to bring him back from the brink. You can then resign, if the memory of the searing event weighs too heavily to bear, or you can justifiably continue to serve if you feel that the order had been uninformed—and if it gets quickly reversed.
If, alternatively, the president had issued the order fully cognizant of the landmine he was placing in front of you, and he remains convinced of the need to take the action despite its fundamental unlawfulness, pushing back will fail. The ethical officer then must resign and ensure that Congress or the public finds out about what has happened.
The only exception would be the kind of scenario that we hope would never arise: one of undeniably imminent and lethal harm to undeniably innocent persons. Say a disturbed president, without even the pretense of a rational cause, were to order the immediate launch of nuclear weapons around the globe—offering time neither to get the vice president and the Cabinet together to quickly invoke the fourth section of the 25th Amendment (and thereby declare the commander in chief unable to execute his duties) nor to assemble the House of Representatives and Senate to respectively and rapidly vote on impeachment and removal.
Obeying the president’s order, usually the right thing to do, would be outweighed by the moral necessity of preventing the certain and unjustifiable deaths of millions of people. In this extreme case, an officer could defend an otherwise inexcusable move to block the president in order to prevent an otherwise unavoidable heinous act. And he or she would need to defend the act; sound ethics would require the officer not to hide in the shadows, like Anonymous, but stand up to accept the consequences of disobedience.
Under what other conditions should national security and law enforcement officers feel justified in covertly scuttling the president’s plans? There may, in fact, be nothing short of such blatant murder. Even if another situation does exist, it certainly would have to be something light-years beyond a perception of a chief executive’s “misguided impulses” about tariffs or alliance politics, however short-sighted such instincts may be.
So serve honorably. Do your best to influence good policymaking. To the extent that you can, stomach the policies you don’t like. If you can’t, quit. And tell the world why.
One day soon, the country will need those who have sworn to support and defend the Constitution of the United States to rebuild the trust and confidence of both the American public and the world. The rule of law will be a powerful ally in that cause—unless federal officials have undermined it by feeding a new norm of sabotage from within.