Are the Lives of Public Officials More Valuable than the Lives of Others? (Thoughts Inspired by the Air Force One Ruse)

Judge Irving Kaufman of the U.S. Court of Appeals for the Second Circuit was an infamous bosshole to his clerks. He frequently pitted them against each other, going so far as to designate one clerk as his favorite and assigning all work to that clerk, who would then be responsible for further divvying it up with co-clerks. But it was easy to fall out of favor with Judge Kaufman, leading the role of favorite--and with it the favored desk--to shift frequently based on the judge's whims. The job of a law clerk involves long hours but clerks rarely quit because a federal appellate clerkship is a plum job that opens doors for an entire career. Most judges have never had a clerk quit. Judge Kaufman's clerks quit on a regular basis. I learned about Judge Kaufman from the lore among Second Circuit clerks (including my late wife, Sherry Colb, who clerked for Judge Feinberg in 1993-94), but I have confirmed nearly all of what I heard from other published accounts, including Martin Siegel's 2023 book Judgment and Mercy.

My favorite Kaufman story, which I heard decades ago and a version of which Siegel also recounts, goes like this: One Saturday, Kaufman and his clerks were working in chambers when the phone rang. Because it was the weekend, Kaufman's secretary was not there, so Kaufman answered the phone himself. He listened for a few seconds, then hung up and, without saying a word to the clerks, put on his hat and coat and left the chambers. Some time later, Kaufman returned to chambers and, as he was hanging up his hat and coat, muttered under his breath: "Bomb threat."

I recount this story today for its obvious resonance with the recent revelation that the Secret Service used a ruse to spirit President Trump out of Turkey via a military plane while using the older version of Air Force One as a decoy--without telling the journalists or many of the White House staff left to fly on Air Force One that the president had surreptitiously left the plane or that the U.S. military and Secret Service were concerned that Iran or its proxies were trying to target the president's plane with a missile. Trump has stated that the Secret Service, not he, made the decision to have him fly in the military plane and use Air Force One as a decoy. That might be true, but he also implausibly claimed that, as the NY Times story just linked put it, "the plane that the public did not know he was on, rather than the plane carrying his staffers and Air Force One insignia, was the plane [the Iranians] were 'more likely to go for.'" And there's the fact that Trump constantly lies about everything.

Thus, it's quite possible that, like Kaufman with his law clerks, Trump decided to save himself and others be damned. That would be consistent with his character. Indeed, although not directly relevant to these incidents, I can't resist observing that Trump and Kaufman are bound together through Roy Cohn. Judge Kaufman is best known as the judge who sentenced Julius and Ethel Rosenberg to death. It eventually came out that this was no accident. Kaufman wanted to be the judge on the Rosenberg case and used his influence with Cohn to get assigned it (in contravention of the usual assignment system). Cohn would later take Donald Trump under his wing and teach him how to lie, cheat, and abuse power.

But I digress. What I want to ask now is whether there is or can be a justification for favoring the lives of presidents, judges, and some other public officials over those of the rest of us. My honest answer is yes, at least sometimes.

To be sure, there are a great many circumstances in which the lives of others should count equally. Judge Kaufman had no good reason to leave his law clerks exposed to the possibility of a bombing he himself sought to avoid because warning them would not have jeopardized his safety in any way. The Trump Air Force One ruse might be different. Journalists traveling with the president are sometimes informed of security measures but asked to keep them secret. If that was a possibility for the flight out of Turkey, the journalists should have at least been notified of the risk of traveling on Air Force One. But perhaps an exodus of journalists would have been a tipoff. And perhaps smuggling everyone onboard Air Force One onto the food cart in which Trump and a few aides exited was not practical either. It is thus possible that the only way to protect the president under the circumstances was to expose the journalists and unknowing White House staff to greater risk. (Apparently Marco Rubio knew of the danger and the ruse but not everyone on the plane did.)

So: Is there a reason to value the life of the president more highly than the lives of others?

By that question, I don't mean to ask whether there is a reason why greater security precautions should be taken to safeguard the president, judges, and other government officials than are taken to safeguard the rest of us. The president, Justices, judges, and some other government officials face greater risks from people eager and willing to engage in political violence. They need greater protection just to get them to the level of safety that most of the rest of us already have.

I'm asking now about providing greater protection for government officials even beyond what's needed to get them to the level of ordinary-person safety--or about protecting them in a zero-sum situation in which that means relatively endangering others. And the answer, it seems to me, is again, yes, at least to some extent.

Violence against anyone (except in justifiable self-defense or defense of others) should be prevented to the extent possible, but harm to government officials does damage beyond the harm to the individuals in their personal capacity. Whether such violence comes from foreign or domestic actors, it damages democracy (when elected officials are targeted) and the rule of law (when judges, prosecutors, and some other officials are targeted). Thus, in situations that really are zero-sum, the safety of a regular citizen can be given somewhat less weight than the safety of a president, a judge, or some other government official without implying that the life of the person who occupies the special role is any more valuable than the life of someone who does not. The sacrifice aims to prevent bad actors from subverting democracy or the law.

I hasten to add that the word "somewhat" does important work in the penultimate sentence of the previous paragraph. It is justifiable for Secret Service members to sprit the president away expeditiously during an assassination attempt, even as they are not taking the same measures to protect bystanders. It would not be justifiable for the Secret Service to turn bystanders into involuntary human shields or expose them to a grossly disproportionate risk. Not having seen the intelligence that led to the decision to divert Trump to the military plane and leave the unwitting journalists and White House staffers to ride the decoy, I cannot say whether the risk to which they were exposed was unjustifiable under the circumstances.

Finally, I am aware that there is bitter irony in what follows from my analysis. President Trump has already faced two assassination attempts. He is not wrong when he says that he faces threats constantly. However, through his grossly irresponsible statements and behavior (especially the J6 pardons), he has fostered an environment in which the actuality and threats of political violence have increased. That is not a reason why Trump should receive less protection than any other president would receive under similar circumstances. It is one of the many reasons to lament that he is president. 

-- Michael C. Dorf