Published by The Lawfare Institute
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The New York Times’s story on “What It Means to Work for Trump,” on top of Jim Comey’s firing last week, got me thinking again about how difficult it is for a lawyer who is a political appointee to act with integrity in the Trump administration. (I limit my comments here to government attorneys, and do not analyze the situation of other political appointees.)
An attorney who is a political appointee often faces a decision—like Comey’s last summer, or Rod Rosenstein’s last week—that is highly consequential and destined to be controversial no matter what he decides. The political appointee will almost always try to “do the right thing.” (I.e. very few act in bad faith.) But even before one gets to the various pressures (discussed below) that can affect one’s judgment, figuring out the right thing can be hard. One often has limited information and faces severe time constraints. The relevant law can be unclear, and its application may raise novel questions and have no obviously right answer. In making a legal or related political decision, the lawyer must figure out the possible consequences and especially downsides of various courses of action; decide how much legal and other forms of risk to absorb; ensure that the decision is principled; take care that any writing in support of the decision reflects right process and good craft values; and so on.
These are some of the reasons why “doing the right thing” as a senior government attorney can be very hard. Realistically, it is made harder by five additional factors that inform decisions at this level.
1. Service to the President and the Administration
Senior political appointees tend to share the President’s aims and general outlook. “Any President, and any Attorney General, wants his immediate underlings to be not only competent attorneys, but to be politically and philosophically attuned to the policies of the administration,” noted then-OLC head and later Chief Justice William Rehnquist. This attunement shapes everything the political-appointee attorney does. It also typically means the appointee will be loyal to the President and motivated to help him achieve his aims. In this context loyalty should not mean doing whatever the President asks. As I wrote in The Terror Presidency, “I thought I was serving the President even when the White House didn’t like my legal advice, both because the President has a constitutional duty to faithfully execute the law and because skirting the law often leads to political trouble.”
2. Political Pressure
Apart from a tendency to help the President, a political appointee often faces overt pressure from a superior, possibly the President, to reach a decision that she might not otherwise make. This is a natural but sometimes ugly part of executive branch life. The extent to which this pressure ultimately shapes one’s decision depends on one’s commitment to the President and the administration, one’s personal integrity, and how one balances the institutional and reputational factors discussed below.
3. Institutional Commitment
A political appointee is a temporary steward in the institution in which she works, and is often moved to preserve the values and reputation of that institution. When I served in the Justice Department, I believed I was part of a tradition of excellence (or at least of aspiration for excellence) that I wanted to continue. And as the head of OLC, I felt keenly that I was following in a line of distinguished Assistant Attorney Generals and was working in an Office with a tradition and aspirations—not always met, to be sure—of high standards and fine lawyering. This attitude shaped how I viewed the goals of the Bush administration and my ultimate decisions. As I wrote in The Terror Presidency, “I often felt responsible for upholding the reputation and integrity of OLC and the Department of Justice in ways that transcended Bush administration interests.” In my experience, institutional concern is particularly important for career DOJ appointees like Rosenstein, who compared to outsiders are likely to have a heightened appreciation for the Department’s institutional role and independence. That makes all the more puzzling how Rosenstein—who is in charge of the Russia investigation—could have allowed himself and the Department to be used as the President’s pawn (see also here) to fire Comey in a manner that diminishes the independence and legitimacy of DOJ and its Russia investigation.
Reputational concerns are ever-present considerations that can play a large role in hard decisions. When I served in government, I tried to downplay these concerns, especially since I usually did not know at the time of hard decision which way these reputational concerns cut. But no political appointee can candidly deny that reputational concerns enter one’s mind.
Reputational concerns come in many flavors, including:
- Reputation for loyalty within the administration. One’s reputation for loyalty to the President and the administration can be important in determining one’s power within the administration. In the Bush administration, I saw people cut out of discussions in which they had equities because they were not seen as Team Players. (As noted above, being a loyal “Team Player” does not simply mean doing whatever the President wants.) A reputation for loyalty can also be vital to advancement within the administration. In government I saw people who weren’t deemed loyal get passed over for jobs for which they were qualified and next in line. And I saw people cutting legal corners to help the President out of what appeared to be a desire to preserve the person’s power, or to get a presidential appointment or promotion. For a political appointee in the Executive branch, loyalty matters.
- Professional reputation inside the government. Power inside the administration doesn’t just turn on loyalty. It turns on competence as well. All thing equal, lawyers with a great reputation for analysis and judgment will garner more influence, and ones with a poor reputation for analysis and judgment will garner less influence.
- Professional reputation beyond the administration. One’s work as a political appointee in the government, and the reputation one acquires in that work, can determine one’s professional opportunities outside government. Political appointees don’t just think about their next job in the government, but also their next job outside government. The reputation one develops (or doesn’t develop) for excellence, integrity, and good judgment can significantly affect one’s employment when one leaves government. Political appointees know this and think about it. They also think about how family, friends, and the general public will view them in light of their government work.
Different people balance these considerations differently.
5. Personal Integrity
Personal integrity is different from reputational concern. It is not about what others think of you but rather about what you think of yourself. It is about self-honesty. It is about adherence to principle in the face of countervailing pressure. It is about lines one will not cross, and things one will not do, out of a sense of what is right and wrong, no matter how important the end.
So how might these considerations--which are typically in tension with one another--operate in the Trump administration? In several related ways, I think.
First, the loyalty an attorney normally feels toward the President and administration that appointed him has to be diminished in the current administration. Trump’s mendacity, norm-breaking, and impetuousness (among other qualities) make it very hard to work in his support. This has to be a corrosive force, since so much of what normally drives a political appointee is admiration for the President and his cause. The corrosiveness must be heightened because Trump himself has little if any reciprocal loyalty to his Team. In an action that is part of a larger pattern, Trump put Rod Rosenstein “in the position of choosing between continued service and behaving honorably,” used him opportunistically as cover, and then cast him aside when that cover wasn’t working. Trump has more generally eschewed responsibility for all of his administration’s mistakes. So political appointees must worry that their dutiful actions will not be reciprocated with presidential loyalty and support.
Second, the Trump administration presents more than the usual number of clashes between White House pressure and the demands of institutional loyalty. We have seen this already in (among other contexts) Trump’s loyalty requirements for nomination to government agency positions, in his demands for loyalty from Comey, and in the way he used Rosenstein and the Department of Justice as a pretext to fire Comey. Political appointees will more often than ever have to choose between, or balance, serving the President and serving their institution.
Third, and for similar reasons, the Trump administration presents more than the usual number of clashes between White House pressure and the demands of personal integrity. Comey displayed both personal integrity and concern for institutional (FBI) integrity in declining Trump’s demands for loyalty. Not everyone will balance these concerns in this way. The closer one is to the President —and especially if one works in the White House where institutional and presidential loyalty are closely linked—the harder it will be to avoid compromising one’s self to the demands of presidential loyalty. For lawyers who work in the White House, personal integrity is (i) the main check on untoward or corrupt presidential pressure, and, at the same time (ii) harder to exercise while continuing to serve in the job, and thus (iii) most at risk for being compromised.
Fourth, working as a political appointee in the Trump administration will involve sharper-than-usual clashes between various reputational concerns. Although it is especially hard to be loyal to this President, he appears to insist on strict personal loyalty to a much greater degree than in past administrations. At the same time, working in support of a president who regularly lies, disrespects the law, attacks the press, dishonors the Office, and the like, portends special harms to the attorney’s professional reputation. I don’t think this is true of every, or even most, executive branch lawyer jobs in the Trump administration. But it is a real danger for those involved in defending, justifying, and rationalizing the President’s questionable behavior and judgments. The danger is again most intense in the White House, since lawyerly and other advisory roles there often amount "to little more than enabling and protecting the President, personally and politically." The danger will grow further when the White House begins to receive grand jury subpoenas.
* * *
The complexity of these considerations, when combined with the unusual characteristics of our President, may have implications for how to think about service as a senior attorney in the Trump administration.* Many political appointees think they can maintain their professional reputations and integrity once in office simply by refusing to cross any red lines, such as ordering Muslims to register with DHS, or facilitating torture. If such a “Korematsu moment” arises, a prospective government attorney may tell herself, “I will throw my badge on the table and write my resignation letter.” Convinced that this administration needs attorneys of integrity who will do the right thing, and pre-committed to avoid red lines, the attorney agrees to serve.
This model is too simple. One reason it is too simple is that much of the time, and especially initially, the legal issue won’t be so clear cut. The issue will present itself less like an overt Muslim ban and more like the first Immigration Executive Order, which was sloppily done and might have been motivated by invidious discrimination, but which also had significant legal support for many of its particulars--at least until the President started tweet-attacking courts and engaging in other dishonorable, self-defeating behavior. In this situation, an attorney might end up defending a deeply troubling position even if it doesn't cross a pre-imagined red line.
Another reason the model is too simple is that decisions happen incrementally in real time in ways that make it hard to see how trivial compromises for the sake of presidential or administration loyalty might commit one to a course of action that ends in a place that sacrifices reputation and integrity. This is more likely happen than one might think because, as David Luban notes in making a similar argument, “[o]nce you are inside, your frame of reference changes.” Luban continues:
The work is challenging and invigorating and cutting-edge. You see that many of the people you’re working with are decent and likable. You tell yourself that decent people like these wouldn’t do anything indecent. Gradually your moral compass aligns with theirs (and you don’t notice that theirs are simultaneously aligning with yours); and gradually all your moral compasses align with The Program. You develop team spirit, and you don’t want to let your team down by shirking; you can’t be a naysayer on everything. You lose your sense of outrage, which is, after all, a feeling we experience when we see something abnormal. Once the abnormal becomes routine, outrage fades.
And above all, you reassure yourself of your own decency because you can contrast yourself with the real radicals, the true believers. They’re right down the hall. In meetings, you try your best to mitigate the damage; you win a few of these fights and become heartened. But you lose more than you win, and your own sense of fair process—“I waged the good fight but lost fair and square”—leads you to acquiesce. You may even find yourself publicly defending the decision you opposed; at best, your duty of confidentiality seals your lips. Your degrees of freedom are radically constricted.
The stringent demand for Team loyalty, the internal frame of reference, and the pressure to decide under time constraints and with factual uncertainty, can cause one to make small corner-cutting decisions that in the aggregate lead one to a place where one cannot help but jeopardize one's reputation and personal integrity. The possibility that a lawyer’s small compromise of principle may put him on a steep slippery slope to a much larger personal compromise is present in every presidential administration. But the danger must be heightened in an administration led by a norm-defiant President who disrespects legal institutions and is disloyal to senior subordinates. If so, then the crucial decision for a prospective senior Trump administration attorney may not be to avoid crossing red lines once in office. It may instead be the decision at the front end whether to sign up at all. “He that walketh with wise men shall be wise,” counseled Solomon, “but a companion of fools shall be destroyed.”
* I thank David Kris for suggesting many of the points in this final section.