Campaign 2016

More on Donald Trump and the Justice Department

By Benjamin Wittes
Wednesday, June 8, 2016, 4:25 PM

I received an email yesterday from a career Justice Department lawyer—whom I had not previously met—in connection with my recent rumination on the consequences for the Justice Department of a Donald Trump presidency.

“I am . . . a lifelong Republican (my bona fides are strong, albeit dated; [I] worked for GOP candidates and officials, [I was] chair of GOP in college and law school, etc.) who changed to an independent after Trump won” a particular state, the letter reads.

If you are finding Lawfare useful in these times, please consider making a contribution to support what we do.

My correspondent asks: “For someone who largely agrees with you, and works here, what is the appropriate response to a Trump victory? Do we have an ethical and civic responsibility to stay here to do our small part to try to keep things in check (but resigning if forced to do something illegal or unethical)? Or is it worse to lend him credibility by staying, even if that means we might be replaced by someone less likely to resist improper direction from Trump's appointees?”

I have heard this anxiety before, rather a lot, actually. It was this sort of concern that I was referring to a few weeks back when I wrote of the national security bureaucracy: "I am not sure I have ever seen this cadre of professionals more unsettled than they are, as a group, today. It is not uncommon to hear people asking themselves whether they could continue in their current roles under Trump. It is not uncommon to hear people ruminate about whether the right course would be to resign or to stay and act as a check—which translates roughly to being an obstructionist of some sort or another."

There is no good answer to the question my correspondent poses. For what it’s worth, however, I would suggest that the least bad option is for all career lawyers in the Justice Department—and career officials in other agencies—to stay put and serve in a Trump administration.

The reason is fourfold:

First and most importantly, the bureaucracy is the front line of defense against executive abuses. So yes, in my opinion, my correspondent and others like him have—as he puts it—some “ethical and civic responsibility to stay here to do [their] small part to try to keep things in check.” The amount of damage that an abusive chief executive can effectuate is dramatically lessened if he has professional staff that will only behave legally and ethically. If Justice Department prosecutors will not target individuals because they have displeased the president or because he has declared that “everyone knows she’s guilty,” a Trump presidency will be far less abusive than if they will do these things. That means that people acculturated to modern ethical and legal norms of behavior among government lawyers should remain in place, at least at the outset. The same is true of FBI agents and CIA officers. It’s important, very important, that the government be staffed at the career level by people who know the lines they will not cross.

Second, my correspondent poses a critical question: who will replace career lawyers whose scruples will not let them work for Trump? I do not relish replacing the swathes of the government workforce that will flee Trump with the cadres of people who will line up to replace them. These are people far less likely to ask themselves whether an order or an investigative step is lawful or ethical or whether—more subtly—the department’s interest in a particular target is uninflected by the vengeful instincts of the president. These are people who will not have institutional memory of apolitical service. I would much rather see Trump’s Justice Department staffed with uncomfortable holdovers ready to walk out than with energetic recruits eager to serve.

Third, resignations in response to illegal orders are far more powerful than preemptive resignations. If Trump’s election were followed by a widespread walkout from the Justice Department (and other security agencies), these departures would be seen as a partisan or political step taken by a workforce resisting the winds of change. By contrast, if endeavors by Trump that offended the consciences of department staff provoked serial resignations in response to specific incidents, the resignations would draw attention to the abuses both on the part of the press and on the part of the public and Congress. Put another way, resignations by career officials will be more powerful if conducted on an as-applied basis, not as a facial challenge to the particular administration.

Fourth, approaching the matter this way preserves another important equity: it is important not to overlook that the basic functions of government will still be important if Trump is sworn in as president. The fact that the President promises lawlessness doesn’t mean terrorism will suddenly be a non-problem. It doesn’t mean that human trafficking will suddenly stop or that cybersecurity vulnerabilities will go away. So there will be a role for honorable service in areas unconnected to abuse even as abuses are taking place. The people who do this honorable service but are every day ready to resign if called upon to behave unethically will be heroes.

For all of these reasons, my advice to career officials wondering what to do if and when Trump becomes president is to stay put unless and until you are asked to do something legally or ethically improper—at which point you should resign publicly and as loudly as the law allows.

I want to stress, however, that this ethical calculation is, to my mind anyway, completely different with respect to political appointees. Given what Trump has said about Mexicans, Mexican Americans, and Muslims, for example, it seems to me flatly improper for any lawyer to agree to head the department’s Civil Rights Division, Criminal Division, or National Security Division—all of which are institutionally duty bound to protect people’s constitutional rights. Given what he has said about the federal judge who sits on his own civil case, I would question the ethics of anyone who agreed to head the Civil Division in a Trump administration. It follows that it is also ethically problematic for a lawyer to agree to supervise those divisions as Associate Attorney General, Deputy Attorney General, or Attorney General—at least without Trump’s backing off of his own promises of unlawful behavior. Similarly, I would question the ethics of anyone who would agree to serve as Secretary of Defense for a man who openly promises war crimes.

The broad proposition here is that when a candidate has made clear that he does not respect constitutional or legal norms and would direct the government to violate them, it is not appropriate to sign up to serve in a position responsible for delivering on those promised violations.

But my correspondent and all those situated similarly to him—the uniformed military officer, the career lawyer, the analyst, the investigator, the intelligence professional—did not sign up to help Trump effectuate constitutional or legal violations. They signed up to serve their country. The highest expression of that service may lie not in jumping ship but in holding the rudder even when the captain is mad.