Monday, June 08, 2020

Imagine Being a Lawyer for the Trump Administration

by Michael C. Dorf

In the immediate aftermath of the 2016 general election, I wrote a column expressing the hope that a Trump presidency would not be quite as awful as the majority of voters who did not choose him feared.  Although some of my specific points have proven true, overall I was wrong. Amazingly, Trump has managed to exceed the remarkably high expectations for awfulness. Mea culpa.

In today's column, I do not so much wish to dwell on the many ways I was wrong or the few ways in which I was right, as to focus on one of the points I made in the portion of that November 2016 column that offered advice. Here's what I said to Never-Trump Republicans (after thanking them for their opposition to Trump):
If you are a principled conservative who opposed Trump's candidacy for any of the many excellent reasons there were to oppose it, PLEASE consider seeking and accepting a job in the Trump administration. We have a unitary executive in principle, but in practice it takes a great many people to run the government. If principled conservatives decline to serve in a Trump administration, it will be filled with servile hacks. Working in the government, you can better advance the rule of law and other values you hold dear than by standing outside and criticizing. In any event, we liberals will be doing plenty of that.
In retrospect, was that sound advice? A deeply insightful recent essay in The Atlantic by Anne Applebaum would say no. She describes the work-to-constrain-Trump-from-within approach as merely one of the self-serving fairy tales that Trump's enablers tell themselves, just as collaborators with other authoritarian regimes have tried to justify their actions. Yet while I find much of what Applebaum says in comparing Trump's enablers and apologists to the enablers of and apologists for past and present immoral regimes quite profound, I'm less certain about this line of argument.

Certainly the ranks of former members of the Trump administration include quite a few career public servants who took the work-from-within approach but ended up resigning or being fired when they found themselves unable to constrain Trump's worst impulses and for their sacrifice were the victims of Trump's childish lying Twitter rants. But putting aside the likely personal toll, did Generals Mattis, McMaster, and Kelly do more good than harm during the time they were part of the Trump team? Do Dr. Fauci's precarious efforts to contradict Trump's nonsense outweigh the compromises he must make on a daily basis? It's impossible to know the answers to such questions because we don't know how things would have gone had these men not served at all or (in the case of those who resigned) had they stayed on longer.

Accordingly, in the balance of this column, I'll focus less on whether the decision to try to work from within is justified than on what it must feel like. I'll discuss a special subset of the people who have served in the Trump administration: lawyers. In focusing on lawyers in particular, I do not deny that others have faced similar difficulties. The federal law enforcement officer tasked with enforcing Trump's racist immigration policies, the National Park Ranger instructed to abet rather than hinder ranchers abusing federal land, the National Weather Service officials pressured to disavow a hurricane forecast, and countless other federal officials of all ranks who are not eager Trump supporters will have had their own particular hard choices and moments of doubt. But I know a bit more about lawyers, so I'll turn to them.

In one sense, being a lawyer in the Trump administration might be easier than serving in some other capacity. After all, legal training cultivates a certain sort of amorality. Lawyers represent all manner of parties: good, bad, and ambiguous. We even consider it praiseworthy to represent those who are despised--and not just those who are despised unjustly but those who are despised because they have committed despicable acts. Ours is an adversary system in which we depend on lawyers for each side to present their respective views of the facts and law so that an unbiased adjudicator can make an informed decision. So, have lawyers who don't like Trump but work for his administration had it easier than people with similar attitudes in other lines of work?

The answer is no for two reasons. First, government lawyers have special ethical duties that go beyond those applicable to private practice lawyers. All lawyers are "officers of the court" in the sense that they cannot knowingly perpetrate a fraud, suborn perjury, or act otherwise illegally, but the zealous advocacy model of lawyering allows, indeed commends, tactics that would strike many people as unethical in ordinary life. For example, a lawyer who knows a witness for the opposing side is telling the truth may (must?) nonetheless cross-examine that witness in a way that leads jurors to think perhaps the witness is lying or mistaken. By contrast, as the Supreme Court famously explained in Berger v. United States (1935), a government lawyer
is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
There is some debate over how that interest in justice applies in civil cases and in the internal operations of government. Surely the stakes in a criminal case heighten the differences between a private attorney and a government one, but even in "mere" civil cases and in non-litigation settings, there is considerable support for the view that government attorneys represent the United States, rather than a particular administration's policy priorities, much less the personal or political interests of the President--at least when the law (best understood) and the national interest clearly contradict the administration's or the President's goals.

The potential for conflict may not be much realized by those lawyers serving in government who are themselves Trumpian zealots, starting with the Zealot General, William Barr, whose speeches reveal him to be a profoundly reactionary theocrat who, as Applebaum argues, sees Trump as a vehicle for ushering in something like the Rapture. Seeing Trump as an-almost-literal gift from God will inevitably decrease the occasions on which one detects a conflict between the demands of the boss and the demands of justice.

But there remain in the government numerous attorneys who do perceive Trump as the threat he is to the survival (perhaps "renewal" or even "establishment" would be a better term) of liberal democracy in America. For them, the dissonance between justice and the boss's demands will be profound. Is it any accident that one such principled attorney--Sally Yates--lasted just ten days into the Trump administration as acting Attorney General? The many others who have survived longer have either had to make ethical compromises or, because they occupy much lower profile positions than Yates did, have managed to escape Trump's notice.

I come now to a second difficulty lawyers working for the Trump administration face--one that is likely faced by other sorts of professionals as well: the demeaning obligation to Trumpify their work. Let me explain with an initial illustration from Trump's private lawyers. As I discussed last year, Trump's personal lawyers filed a brief that repeatedly referred to the "Democrat Party." Doing so was puerile, but it's possible the lawyers themselves are so steeped in right-wing culture as not to know what they were doing. And even if not, the sort of person who would agree to represent Donald Trump in his personal capacity--as opposed to a career DOJ attorney representing the government that happens to be headed by Trump as President--is hardly going to blink at a childish moniker.

Suppose, however, that career officials are ordered to start adopting Trumpist language--for example, to refer to journalists who write stories that portray the administration in a negative light as "fake news" regardless of the accuracy of the reporting. Even if there is a legal justification for the position taken, there is something demeaning about having to use Trumpian argot.

Thus think back to May 28, which, amazingly, was only 11 days ago. On that day, the Trump administration issued an executive order in response to Twitter's questioning of the accuracy of Trump's Tweets to the effect that voting by mail is especially susceptible to fraud. To be sure, the order doesn't really do anything itself. Instead, it directs federal agencies to look into ways to screw over Twitter by reinterpreting Sec 230(c) of the Communications Decency Act to eliminate safe-harbor treatment of platforms that engage in "censorship."

But wait. Even assuming the executive branch could reinterpret Section 230(c) (which it mostly cannot), what has any of this to do with Twitter? It merely applied its regular policies to Trump. That brings me to the astounding part of the order. It reads:
Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias. As has been reported, Twitter seems never to have placed such a label on another politician’s tweet. As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets. Unsurprisingly, its officer in charge of so-called ‘Site Integrity’ has flaunted his political bias in his own tweets.
Some poor slob probably had to write that paragraph. I say "probably" because maybe it was a true believer like Barr or Stephen Miller. But Miller is not a lawyer and it's hard to imagine that the Attorney General had primary responsibility for drafting the executive order. It's more likely that some lawyers were tasked with converting Trump's ire at Twitter into something law-ish. I imagine the discussion went roughly like this:

Lawyer 1: Wait. To accuse Twitter of censorship, don't we need to show political bias?

Lawyer 2: Twitter is biased. It flagged President Trump's tweets but not those of Democrats.

Lawyer: 1: Well, that's not political bias unless the Democrats' tweets were equally untrue.

Lawyer 2: Hmm. I know! We can point to how Twitter lets Adam Schiff talk about collaboration with Russia, even though the Mueller Report didn't recommend indictment.

Lawyer 1: As long as we're going there, let's make it great! Let's say that Twitter doesn't flag "Shifty Schiff for peddling the Russian hoax even though it was disproved by the Mueller Report."

Lawyer 2: I'm not sure we should put "Shifty Schiff" in an executive order just yet. Wait for the second term.

Lawyers 1 and 2 both laugh heartily.

I'll close by saying I'm not sure which would be worse: to be an honest professional trying to do your job but having to accept the degradation of doing so in Trumpian fashion or being so Trumpian to begin with that one doesn't realize the complete inappropriateness of writing an executive order aimed at intimidating a social media company in the guise of attacking censorship and including in that executive order itself--not a press release, mind you, but the actual executive order--the phrase "long-disproved Russian Collusion Hoax."

Put differently, it can be hard to know from the outside which administration officials merely to pity and which to loathe.

2 comments:

Joe said...

Singling out a sitting member of Congress with a charge which for me amounts to libel is a norm violation that at this point is basically taken with stride but this isn't Trump tweeting. It's an official executive order. The order did not make the dubious claim that arguably Schiff's words could be taken that way & Trump should be treated in the same fashion. It made a factual judgment. That matters.

Readers can see I was not quite positive (maybe that is not the right word) when that original blog post was written. But, I respected the sentiment & agree with the general remarks here.

Marty Lederman said...

By regulation (as required by the Executive Order on Executive Orders), the Attorney General must approve all E.O.s for "form and legality," a function the AG has delegated to OLC. See E.O. 11030, sec. 2(b); 1 CFR 19.2(b)-(c); 28 CFR 0.182, 0.25(b). Such form & legality review, I can attest from experience, includes ensuring (to the extent OLC is able, within reason) that the facts & representations in a draft E.O. are accurate. Therefore, OLC *should* have flagged "Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax," and refused to approve the E.O. until that was corrected or removed. Perhaps it did so and either Barr or Trump overruled OLC. (The President, of course, unlike OLC and the AG, can issue statements, including E.O.s, that reflect his illusions about the state of the world.) That would be more reassuring than the alternative, which is that OLC approved it for form and legality. A FOIA request would probably reveal what happened.