Democracy & Elections

Reflections on Service in a Trump Administration

Benjamin Wittes
Tuesday, November 22, 2016, 2:55 PM

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.

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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:

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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