Since Donald Trump’s election as president, I have had more than my share of inquiries from current and aspiring Justice Department attorneys about the ethics of service under the new President-elect. The reason is this piece I wrote back in June, which seems to be one of the only pre-election articles to try to offer guidance to those contemplating service if the unthinkable should happen and Trump should win. As the article reflects, I was prompted to write it not by some great premonition that Trump was actually going to prevail—on which point I was as surprised as anyone—but because someone at DOJ wrote me and asked for my thoughts.
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The other day, my correspondent—a Republican career official—wrote me again, describing the mood at Justice. “To my eyes and ears it has been all business, with the exception of the occasional, ‘well, who knows now?’ (and variations thereof) when talking about work-related projects and policy issues. I feel like I can sense it in the air, but that may just be me projecting,” he writes. “Although Trump has sadly graduated from politics to work-related reality, until transition begins, it still feels more like the former.”
But it’s not all business as usual: My correspondent closes with “two quick anecdotes”: “First, one of my best friends . . . is in the Civil Division, and I sent him the link to your first piece the morning after the election. His response? ‘Crap, I can't even get through this article without starting to tear up.’ Second, I have had four non-DOJ friends (all Democrats) tell me I have to stay.”
The air of “all business,” in other words, is a fragile one.
Assuming he’s confirmed as attorney general, Jeff Sessions will thus take over a department in which many people are at least contemplating whether they should stay—and others are contemplating prospectively whether work elsewhere would be more honorable. There’s the assistant United States attorney who told me the other day that he was thinking of leaving because he didn’t want to stand up in court and say that he represented the United States when “the United States” meant Donald Trump. And there are the letters I’ve gotten from people offered jobs at Justice who aren’t sure whether to show up for work.
There’s this one, for example:
We've never met, but following your post encouraging career civil servants to remain in DOJ under a President Trump administration, I'm wondering whether you would give the same advice to would-be new hires through the DOJ honors program. I was just offered a job at DOJ that I would otherwise accept in a heartbeat, but I don't know if I can, in good faith, sign up to begin my legal career in a Trump DOJ. Two of your arguments don't seem to apply to new hires: I wouldn't have experience in the norms of apolitical civil service (although I'm committed to that ideal). And I wouldn't be able to make a statement by resigning if asked to do something unethical, because it's unlikely that a low-level line attorney's resignation would carry much weight. . . . I would be grateful for any advice you have.
And this one:
We don't know each other, and I would guess you must be extraordinarily busy in the aftermath of last night, but I hope I might be able to trouble you for a little advice.
I am a 30-year old, progressive liberal, five years out of law school, who cares deeply about the integrity of the law and our institutions. I currently live in [REDACTED], but am slated to begin as an AUSA in the appellate division of the U.S. Attorney's office in [REDACTED] at the beginning of January.
Specifically, I am hoping for a little follow up advice to your June article on Lawfare about whether career Justice Department attorneys should stay or leave.
My question is two-part: First, has anything changed your perspective and advice since June? And second (and narrowly tailored for me) would your advice change for someone that has accepted a job as an AUSA but has not started? . . . You called the DOJ the least-tyrant proof part of our government, and I have never been so scared for our Constitution and our system of justice.
I would imagine I don't need to tell you, but my apprehension is not about partisan politics; I fully recognize an AUSA is a nonpartisan role and as you noted, the same crimes committed yesterday will be committed in the future and we need good people working to fulfill what you call that honorable service. And were I already in [REDACTED] and working in the office, I am much inclined to agree that staying on to check abuses likely would be the least bad option. But I'm not yet in [the office], and apart from this job have no desire to move there. In a sense, it feels as though I have a clean slate right now (though I would have regret for disappointing the other good men and women in that office counting on my arrival).
I want to stress, as a preliminary matter, that all three of my correspondents are people I have never met. These letters don’t reflect some left-wing cabal I have gathered around myself of those career officials mostly likely to be terrified by Trump. They reflect, rather, the very real conversation that a great many people are suddenly having with themselves, and with others, about service in the Justice Department.
So before I offer my thoughts on the question posed, I want to stress to Sen. Sessions—or to whomever ends up running this department—that the new attorney general has a serious job to do in reassuring career civil servants that it’s still “all business” and “apolitical service” at DOJ, and that decent public servants can contemplate that service at DoJ without tearing up. The new AG has got work to do in creating an environment in which the best and the brightest out of law school and clerkships still apply for the DOJ Honors Program and accept the jobs they get offered. And there’s also work to do in making sure that young lawyers with an offer to join a U.S. attorney’s office actually show up for their first day of work. The new attorney general should not take these things for granted, because he’s been nominated by a President-elect whose repeated words and behaviors have denied him the confidence of the DOJ workforce. He will have to earn that confidence back by making clear that less has changed than people reasonably fear.
Given that reality, what’s the right answer for the recent law school graduate offered a job through the DOJ Honors Program, part of a class of people who by dint of elite performance already have a universe of opportunities before them? What’s the right answer for the young lawyer with a chance to do appellate work for a U.S. attorney’s office but with qualms about going into work every day beneath a picture of Donald Trump and anxiety about standing up in court to represent the executive branch as embodied by him?
In the days since the election, we have seen a rich debate about whether decent people should serve in the Trump administration, both at the career and political levels. In Slate, Dan Byman considered the concerns raised by his students at Georgetown who are suddenly doubting whether they should go into public service and argued that we cannot afford to let our best and brightest flee government altogether—although low-level civil servants should serve with the knowledge that they may be called upon to resign when the line is crossed. Susan Hennessey has argued that political appointees also have a duty to serve, though they should do so with an undated letter of resignation in their desks. Over at Just Security, David Luban, Oona Hathaway, and David Kaye have debated the ethics of working under Trump. All this has been cast into sharp relief by Eliot Cohen’s very public flip-flop on whether young Never-Trump conservatives should volunteer to serve: after recommending service in a Trump administration immediately post-election, Cohen then loudly rescinded his recommendation following an ugly experience with the seething and “arrogant” transition team. His advice now: “stay away.”
And that’s only the commentary among the legal and policy communities. Amy Davidson has also weighed in at the New Yorker, along with Ross Douthat, whose ominously titled column in the New York Times reads, “You Must Serve Trump.”
Just the other day, I was privileged to host Byman and Luban in a live discussion of the subject, a discussion made all the more ethically serious by the fact that both men were quite candid about not being too sure that their respective views were correct:
For whatever it’s worth, the last two weeks have reinforced my conviction that career DOJ lawyers should remain in place and that those aspiring to serve at the department should not be deterred by Trump’s mug on the wall. On the other hand, this period, along with Trump’s early appointments, has also reinforced my view that there are profound ethical impediments to service at the political level under Trump. While my view of this matter is not quite as absolute as Luban’s, and there are some distinctions I think it important to make, I largely agree with him that for most people, honorable service at the political level will be difficult.
Let’s start with what I think is the easiest case: that of the career official already in office. On this matter, I have little to add to my post of June. I believe all such people should remain in place for four distinct reasons: (1) the bureaucracy is the front line of defense against executive abuses; (2) it would be a disaster to replace the many government lawyers who might flee a Trump administration with the cadres of people who would line up to replace them; (3) resignations in response to illegal orders are far more powerful than preemptive resignations in response to political atmosphere; and (4) even in Trump’s America, the basic functions of government are still important and still require a professional career DOJ. To these four points, I will only add one other: (5) there will come a day when the people of this country move on from Trumpism, and when that day comes, it will be exceedingly important that part of Trump’s legacy not be having denuded the federal workforce of talent and conscientiousness; it will also be important to have the institutional memory of people of character and experience to help pick up the pieces.
The case of the career official with a job offer but who is not yet in place is a little more complicated. There is, after all, no moral or ethical obligation to go into government. And such a lawyer is perfectly entitled to ask whether his or her talents and instinct for public service would find better use in, say, representing some of the many people who might be negatively impacted by the reckless policies Trump has promised, or in representing some public interest cause in which he or she deeply believes. Such a lawyer, I would add, is also perfectly entitled to make the judgment that this is not a moment at which she can expect to make a real contribution inside government, so it’s a good time to make some real money at a law firm representing clients with non-political problems instead. Whatever the ethical imperative to fall on a grenade to protect the people around you may be, there is surely no ethical or moral imperative to seek out grenades on which to fall.
But to everyone in the same position as my two correspondents contemplating career DOJ jobs, please at least consider the following question: If everyone with your anxieties cedes the field to people without the same scruples, who will be making prosecutorial decisions on behalf of the United States? If the decisions to prosecute people in a Trump administration are being made by people without scruples over coming to work every day and laboring under his photograph, is that Justice Department more or less likely to be politically abused? I would, speaking personally, much rather know that every U.S. attorney’s office has young lawyers willing to resign the day they are asked to do something inappropriate than know that the only people DOJ can now hire are those comfortable working under the Trumpists. In my view, if you go to work for the government—as Byman suggests in the debate with Luban—with your red lines clear to yourself and are prepared to resign publicly the moment you are asked to cross those red lines, you will be doing the nation a great service, whether you end up having to resign or not.
The political echelon is different, and here I must say that I am closer to Luban than I am to Byman or to Susan Hennessey. Though I would not say, as Luban does, that one should never serve, I do start with the presumption that there are many more ways for such service to end badly than to end well. As Luban puts it, you may go in intending to tame the beast only to find that the beast has tamed you instead.
For one thing, in a fashion that just is not true of the career level, accepting a political appointment is an act of affiliation. The political appointee serves “at the pleasure” of the President. He is the President’s instrument of political guidance over the agency in question. Thus, to go into government at a political level under Donald Trump is, at some level, to sublimate one’s own political identity to his. So start with this simple question: Do you want to do that?
That question, in my opinion, is mostly self-answering under the best of circumstances, but the problem grows far worse problem because of Trump’s early appointments. Steve Bannon, Michael Flynn, and Jeff Sessions all have, shall we say, issues on the bigotry front. In Sessions’s case, that problem is denied by the attorney general designate, who protests that he is not a racist. Let’s accept his assurances for purposes of argument. But in the case of Bannon and Flynn, the bigotry in question is really not a matter of contest, just a matter of definition. There is no doubt, after all, that Bannon headed Breitbart, or ran an ad for Trump that talked about an international cabal of bankers while showing the menacing faces of a bunch of Jews. And there’s no doubt either that Gen. Flynn tweeted about the rationality of suspicion of Muslims and denied that Islam is a religion at all. The only question is how much these facts bother you.
How much does it bother you that you’ll be working not just for Trump but for Trump as conditioned by Bannon, Flynn, and Sessions? How much does it bother you that the act of affiliation with Trump is not limited to the problem of Trump himself—that is to say, the problem of the President of the United States? How much does it bother you that the beast’s earliest appointments show how little it wants to be tamed?
All of this should, in my judgment, preclude most decent people from serving the Trump administration at the political level. Unlike Luban, however, I would suggest a few important exceptions to this rule, exceptions which I formulate here as questions for people considering service in the Trump administration.
First, are you a person of sufficient independent stature and public regard that you can actually push back in a fashion that’s meaningful? In other words, can you without egomaniacal self-delusion genuinely convince yourself that you can make a difference and restrain the beast or divert its energy in more constructive directions? There are, I think, relatively few people who can honestly answer this question in the affirmative. But there are some. James Mattis and Mitt Romney, for example, both met with Trump this weekend in connection with, respectively, the Secretary of Defense and Secretary of State jobs. These are both men who might tell themselves with some justice that they have the stature and prestige and talents to create an atmosphere of sanity in the domains under their control and to push back against the worst elements of the administration in interagency fights. They might reasonably tell themselves that they have sufficient public regard that the mere threat of their resignations would give Trump something to think about. And particularly in the case of Romney, who so publicly opposed Trump throughout the campaign, they would have a good argument as well that service should not be confused with an endorsement of Trump’s many illiberalisms.
Second, are you contemplating a position in an area in which Trump has made commitments that are unconstitutional, illegal, or morally repugnant? Given that Trump has promised to target terrorists’ families, it seems to me that if one is contemplating a position in his Defense Department, one has a certain obligation not to accept it without a clear understanding that war crimes will not take place. If you cannot secure that commitment, you have no business accepting an appointment. In the Justice Department, given the things Trump has likewise said about Muslims and Latinos it seems to me you have some duty not to accept a position that will require you to be an instrument of discriminatory treatment of minorities.
By contrast, if you can secure a commitment that your department will not be asked to do anything horrible under your leadership, your taking the job might itself offer protection for those who, as a result of your holding it with the assurances you’ve garnered, will now not face the consequences of the policies these assurances have stopped. More generally, the matter is less acute if you can honestly say that you are taking on a policy area that does not implicate any of Trump’s illiberalisms, and less acute still if it’s an area where you honestly believe his policy pronouncements portend positive goods. So, for example, I can imagine that a conservative who—whatever else she may think about Trump—is excited by the opportunity to help him pick conservative judges might do so without pangs of conscience. And I’m not sure I see a reason why people should eschew political appointments in the Department of Agriculture or the Department of Transportation.
Third, are you prepared to resign in three months, and are you prepared to do so in public? If you are not certain that the answer to both of these questions are positive, you absolutely should not take a position in this administration. The best case for Trump is that he didn’t mean a damn thing he said on the campaign trail, so we should take none of it seriously. If that’s the reality, the good news is that the President-elect is a blank slate on which you might be able to write your own text. The bad news is that he is a serial liar who will say anything. That means that you can’t count on anything that he and his people may be telling you now. And that, in turn, means that you may get into the job and find you have absolutely no latitude to function within sane or reasonable policy (or ethical) parameters in it. It would be grossly irresponsible to accept a position without recognizing this eventuality as a possibility—which means that you need to be prepared to walk out the door on any given day.
I believe that the number of honorable people who can answer these questions in a fashion that would permit service in this administration is likely very small indeed. That said, unlike Luban, I would urge those people, and only those people, to go into a Trump administration for however long they can serve in it without corruption.
Alas, I do not expect it to be long.