Anticipating Trump: Should Government Lawyers Stay or Go?

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[Editors’ note: This post is the latest in Just Security’s series on the ethical and legal dilemmas of serving in the Trump administration. On Friday, Jon Michaels wrote about checks and balances internal to the administrative state that could limit presidential overreach. Stay tuned for essays from Oona Hathaway and David Luban.]

Like many readers of Just Security, I imagine, I remain in a state of shock and frankly despondency over the election of Donald Trump as president of the United States. We likely share a deep sense of dread about the future.

In as few words as possible, I want to step outside of my role as law professor at UC Irvine and a UN special rapporteur to say a few personal words, directed mainly to my former colleagues in the Office of the Legal Adviser at the State Department, a bureau in which I am proud to have started my legal career — and a bureau which has been, though not always consistently over history, a critical place for the advocacy of rule of law within the U.S. Government.  

A personal start: For those unaware, “L” lawyers are chosen much like lawyers in a firm — through a competitive non-political process. The office has always enjoyed extraordinarily talented and committed civil servants along with a colorful diversity of views, political and otherwise, but all sharing a common aim of upholding and advocating the commitment to U.S. domestic law and international obligations. For my part, I left Berkeley for L in 1995 and enjoyed a varied career, from international claims to nuclear nonproliferation to international humanitarian law and, finally, service at the U.S. Embassy in The Hague. And personally, I count among my closest friends those with whom I worked during that time. I imagine that combination of camaraderie and sense of common mission remains strong today.

My career began during the Clinton Administration. I rarely if ever had to face challenges to my moral or ethical obligations during my first five or six years. Sure, did I want President Bill Clinton to veto the Libertad Act (aka Helms-Burton, the anti-Castro Cuba law) in 1996? Yes I did. But his decision to implement – and thankfully waive Title III — did not cross some ethical boundaries for me. I watched from a slight remove as senior officials pushed extremely hard to get L to agree that bombing Serbia over Kosovo was legal under the UN Charter, something my heroic colleagues resisted in the face of serious pressure.

The years under George W. Bush were different. Those of us dealing with international law faced real pressures. For me, the main pressure involved an ugly fight with Justice Department and White House lawyers over the application of the Geneva Conventions in Afghanistan and the consequent status of detainees there and in Guantanamo. That fight is fairly well known at this point. In my opinion, the system was badly corrupted by a process in which lawyers from OLC at Justice provided secret advice to the White House, cutting out the normal inter-agency process to get appropriate advice and choices to the President. Only later did we in L learn of certain decisions or advice.

I am pretty certain that my colleagues from that time share the feeling that we were in luck: we had the support of Colin Powell and Will Taft, Secretary of State and Legal Adviser respectively, to push hard for our view of international law obligations and the global consequences of bad decisions.  Not only that, we had likeminded colleagues at the Pentagon, especially lawyers in the services and Joint Chiefs, who shared our view of the looming disaster that detention without Geneva protections would bring.

We lost that battle in the main — the President agreed that Geneva applied but that nobody brought to Guantanamo enjoyed POW status, and his characterization of humanitarian protections included an out for “military necessity.” Though I left by July that year for The Hague, largely untouched by these matters, I understand that L was largely cut out of the later debate over torture (i.e., waterboarding and other abuses). John Yoo’s infamous torture memo, signed by Jay Bybee, is legally wrong and immoral, and it pretty clearly didn’t make it through the L gauntlet for clearance.

My point is this: It seems likely that the Trump years will look like an ever worse version of Bush 43. I imagine corruption of process, pressure on advice, advocacy for basic unlawfulness, retreat from key institutions (I’m particularly worried about the Human Rights Council, where U.S. engagement has become a real net positive).

I suspect that many government lawyers and other civil servants are now considering their way out of government. I get that. There is a very real risk that government lawyers will be roped into complicity if the Trump Administration pursues unlawful policies and practices. That might mean drafting the arguments for such behavior or defending it before international or domestic bodies. Many of us faced that kind of pressure during the Bush years. You will be asked to craft arguments you know to be wrong, or to spin them appropriately, and your professional responsibilities require you to be honest and not shape your advice according to your client’s desire for what that advice is. Easier said than done.

There are reasons to stay, if you can do it. The administration will need to know when its proposals are outside the law, beyond normal practice and precedent, and they will need to know the consequences. L is the repository for that knowledge and those arguments, with a comprehensive and historic sense of treaty law, customary obligations, enforcement mechanisms, and so forth. We will need honest lawyers within the system, those committed to the Constitution, our statutes, our treaties, our traditions. Developing coalitions of lawyers within government to resist illegal acts depends upon civil servants. Ultimately, when serious illegality is taking place, who will blow the whistle but the lawyers and other civil servants who have the ability or willingness to resist?

You should also know that you have a network of lawyers outside who would support you, whether our professional networks like the American Society of International Law and the American Bar Association, academics from around the country, or the research and advocacy organizations from across the spectrum of issue areas. I am pretty confident that people will stand with you and not blame you for the awfulness that might lie ahead, so long as you act in good faith and provide the best possible advice you can under the circumstances.

Look, everyone has a choice to make, and a choice to leave may be the best one. That’s what I might do, for sure. A choice to leave — indeed, even a massive outflow of lawyers — might itself be an important symbol of resistance and undermine the credibility and legitimacy of Trump administration policies. It might deprive the administration of the tools to accomplish wrongful acts. You might want to wait and see how things develop. You might be compelled to leave for reasons having nothing to do with foreign policy but with the broader awfulness we saw during the campaign.

I am not writing to say leave or stay. I am writing to say there is good you can do from the inside as well as the outside. And you can count on people of conscience outside to support you, whatever your choice.

Image: Wikimedia

 

About the Author(s)

David Kaye

UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Clinical Professor of Law at UC Irvine School of Law, Formerly Served in the Office of the Legal Adviser at the State Department (1995-2005) Follow him on Twitter at (@davidakaye).