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Help Wanted: Custodians for the Rule of Law

A version of these remarks were delivered by Lisa Monaco at the University of Chicago Law School Diploma and Hooding Ceremony on June 10, 2017, where she also received the Distinguished Alumna Award.  The author gratefully acknowledges helpful comments from former White House Counsel Bob Bauer and former Legal Advisor to the National Security Council Chris Fonzone, on earlier drafts of these remarks as well contributions by Jack Goldsmith in Lawfare which informed these remarks.

 

Help Wanted:  Custodians for the Rule of Law
Remarks to Graduates at the University of Chicago Law School Commencement
June 10, 2017

Thank you Dean Miles.  It’s a pleasure to be here this morning with fellow alumni, soon to be alumni, members of the faculty, distinguished guests.  Most importantly, though, I want to say congratulations to the class of 2017 and to your families and friends here this morning.  I am privileged to be part of this day.

Having spent the last several years in the White House dealing with everything from terrorism to cyber threats, to pandemics – I could talk this morning about managing a crisis and national security today and the resilience we need as a nation.  I could tell you about my time in the Situation Room – working with dedicated men and women across the government to manage crises as varied as the Boston Marathon Bombings, the fight against Al Qaeda and ISIS, an Ebola epidemic, countless terror threats, cyber threats and natural disasters.  In fact, my job earned me the nickname, Dr. Doom, from the President of the United States because I rarely, if ever, brought him good news.  I am grateful for the rigorous training I received here at this great law school; I used it every day.  Today though I want to talk about how being armed with that training and possessing a craft is only a start.  I want to talk about what it means to be a lawyer in public service at this moment in our country and why, although you should savor that sense of accomplishment you feel today – it is well deserved and hard earned —  your work is not done.

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I confess to indulging in a bit of nostalgia in preparing for today’s remarks. It got me thinking about the last time I was in this Chapel.  It actually wasn’t for my own graduation.  It was three years later, in April of 2000, I had come with my then boss, Attorney General Janet Reno, to attend a memorial service for one of her predecessors, the 71st Attorney General of the United States, the great former Dean of the Law School and President of this University – Edward Levi.  The dignitaries were all on hand to honor a man who was not only a fixture here in Hyde Park but who restored faith in the rule of law and the credibility of an institution – the Department of Justice — that I would grow to love and which would have everything to do with forming me as a lawyer and a public servant.

Ed Levi became Attorney General in the throes of Watergate – after Nixon resigned and  Gerald Ford assumed the Presidency.  It was 1975 and the Watergate scandals, and Independent Counsel and Congressional investigations had thrown institutions fundamental to our democracy – the Presidency and the Department of Justice to name two – into chaos.  The norms and traditions of those institutions were upended by the actions of a President, and some who served with him, that did not respect the rule of law. Faith in government and accountability of those in power, and credibility of institutions responsible for the impartial administration of justice were all in question.  Our institutions were being tested in ways we had not seen before.

Ed Levi took the helm at the Justice Department after the famous Saturday night massacre, the resignation of an Attorney General and his Deputy, and after the firing of the man investigating the President.  Levi is rightly credited with restoring faith in the Justice Department by restoring its proper role – as independent investigator and prosecutor free of political influence.  He did so by, among other things, establishing a set of Guidelines to govern the conduct of the most sensitive of investigations and keep them free of political influence.   He is said to be the model of the modern Attorney General because of two fundamental things:  he believed deeply in the separation of powers and the independence of law enforcement from politics.

The first is, of course, enshrined in our Constitution, but the second is largely a function of customs that have grown up over time to ensure faith in the institutions we rely on to enforce and uphold the laws.  Levi understood that these customs require custodians.  Levi understood that the institutions entrusted with great powers must be guided by norms that check that power’s use and ensure public servants temporarily entrusted with that power are held accountable for how they exercise it.  This understanding allowed Levi to reverse a crisis of legitimacy in Washington by restoring the public’s faith in an institution and belief in the rule of law.

I begin with this reference to Ed Levi because he exemplifies the role the lawyer has in upholding norms and institutions at a time of crisis and change.  I begin with Ed Levi because the world you enter when you cross the Midway today holds great challenges.  Whether in public service or wherever you apply your talents – you will be called upon to confront hard questions.  As lawyers you will have the opportunity – and I believe the responsibility — to navigate those questions while following practices that can make a difference between merely advising on what is allowed and doing what is wise.

Today I want to share with you a few observations from my time at tables in government.  I want to make the case to you that the skills you leave with today are necessary, but not sufficient, to enable you to confront the hard questions.  I hope to persuade you that no one can teach you the craft of being a lawyer better than the University of Chicago, but you will also need to bring to it your own framework that extends beyond that craft to navigate a complex world and to act as custodians of the institutions and norms we need today and in the years ahead.

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Today we are experiencing some of the most complex challenges in our Nation’s history.  Sound like commencement hyperbole? Maybe. But maybe not.  Perhaps those present at the dawn of the industrial age would beg to differ.  Time will tell – and you will help us decide.

The forces of globalization, technological evolution, proliferation of powers that defy traditional structures – be they ISIS, an increasingly assertive Russia, a new microbe or artificial intelligence – all tell me that Tom Friedman has it right when he says that we are living in the age of acceleration.  The problems you will face will test our current conceptions of privacy and security; the law of nations and the rules based international order America has led since World War II; and of science and inequality.

It’s a complicated picture, but one also filled with opportunities.  My prediction is that in the not too distant future:

  • One of you will counsel a client on the intellectual property of a vaccine for the next infectious disease;
  • One of you will advise on issues of digital sovereignty confronting a start up another one of you will have started up;
  • One of you will try to figure out how a system of laws designed with human agency in mind should apply when machines learn and are guided by artificial intelligence;
  • One of you will wrestle with the responsibilities and opportunities inherent in a world where huge volumes of data can be collected, digested, analyzed and used for good and for ill; and
  • All of you will think about the social compact enshrined in our Constitution, and when our government’s responsibility to protect you may or may not yield to the belief that you alone should have access to your data.

There will be questions that the law does not answer.  And that is where you’ll need to go beyond the ability to slice and dice a text or Supreme Court case to exercise the sort of judgment that helps their clients navigate problems and manage risk.

What precisely does this mean?  Well, the law doesn’t always provide pat solutions.  The Constitution itself is full of open-textured dictates – searches and seizures must be “reasonable”; individuals are entitled to all of the process that is “due”; the President must “take care” that the laws be faithfully executed.  And in international law, there is not even a Congress or Supreme Court to resolve such questions as when a cyber operation violates another country’s sovereignty or constitutes a use of force.

To answer questions like these, it is essential to know what the law is – but that is only the first step.  You also need to know how to handle the unresolved issues, the “gray” areas.  When should you read the existing law aggressively so that the Government can do something viewed as necessary?  When should you not?

Lawyers don’t necessarily answer these questions by themselves – in many cases, it is the client who gets to make the call.  But you will be forced to think through how you might navigate these gray areas.  What are the ethical and moral implications?  Is it consistent with our nation’s values and who we are?  What precedent will you be setting that others may follow?  What your clients will be looking for is not only legal acumen – it is assumed you have that – but rather a good judgment and sense of responsibility that is much rarer and much harder to define.   Society will need those who can navigate the gray space, those who, like Ed Levi, respect and uphold the practices, norms, and institutions that – while not written into law- are the connective tissue that keeps the rest of our rule of law muscle strong.

Why do I think these norms and institutions are so important?  I am purposely drawing a distinction between that which we proscribe in law and that which we adopt as custom, practice, or a model for our behavior.  Because what’s allowed is not the same as what’s wise.  It’s  important for a lawyer to make clear when she’s providing legal advice, but there will be moments when it would be a grave mistake for her only to provide such advice.

Let me give you an example.  The Constitution clearly gives the President a role in law enforcement matters:  he’s the head of the Executive Branch, he has the power of the Pardon, and he can set enforcement priorities.  But, as time has shown us it is vitally important that the Government’s power to enforce the laws and deprive persons of liberty be done in a manner divorced from partisan politics and without fear or favor.  This means heaving practices in place like the Levi Guidelines and rules on when and who in the White House can contact the Justice Department about active criminal matters.  And it also means having lawyers in both places who are dedicated to the rule of law and doing what’s right.

Another example might be how we approach transparency in government.  There is a body of law that dictates when the Executive Branch must make certain materials public.  But even when there is no law requiring it, transparency about what is being done in the peoples’ name is important for the credibility of government’s actions, public confidence and faith in its operations and accountability of those elected and appointed to serve.  Some measure of transparency may be the difference between public confidence and public cynicism.   Now, when it comes to matters of national security, this norm of transparency may yield to legitimate concerns about security and safety.  But lawyers and policymakers must help strike the right balance because the public and the courts can only do so much in this arena.

There will come a time when your ability to both practice the craft you’ve been taught and navigate the gray will have nothing to do with LSATs, grades, clerkships and everything to do with your credibility and integrity.  Just as our confidence in the Government’s judgments largely rests on how credible the actors and institutions are that are making those judgments. This is especially true when you can’t say everything about what you’re doing.  There were times when I found myself in exactly that space –the terrorism operation that could not be fully explained, the intelligence tools whose efficacy was only as good as the secrecy surrounding them.  In these times, the process used to reach a decision is critical.  Did all of the key players with different views have a seat at the table?  Were the subject matter experts relied on and not marginalized? These questions can dictate whether a decision had integrity.  At the Justice Department and the National Security Council, I was conscious that I was part of a strong tradition of professionals who served across administrations and believed deeply in their role as stewards of an institution where process matters.  Adhering to norms and process was a badge of honor.

These are examples from my government service, but regardless of your path, you will be looked to not only to answer the narrow question of what is allowed, but to be custodians of institutions that enable us to also get it right.  And you will need more than raw legal horsepower; that’s precisely why I said at the outset that there’s more work ahead.

You will need a framework to help you transcend the tactical.

Before I close, let me ask you to consider the following:

Imagine you are seated at a table in your future life.  That table could be anywhere – a Board Room, a court room, your kitchen table, or the table in the Situation Room at the White House.  You will be well-equipped to answer the tactical issue at hand. You will be able to determine what is “allowed,” to assess the risk inherent in a particular course; to guide your client on how the legal rules will apply. But, the questions that will often prove the most challenging –and the most likely to determine success – will require you to look beyond these immediate considerations.

What precisely does this mean?  The framework you’ll need at this future table might include questions you ask yourself when you are confronted with an issue that may not accommodate black and white as easily as it fits itself into a shade of gray.

The first question – your professors will be happy to know – should be:  Is it legal? Seems straightforward enough, right? You’re taught here to weigh risks and costs and benefits – I suggest to you that the cost in malpractice fees of not making this your first question may well be substantial….

But if I leave you with anything today, please don’t let this be the only question you ask yourself.

In the Situation Room – we always started with the question of whether the options we were considering were lawful.  The answer would often come after the inevitable 3-part test was laid out, after the domestic and international law doctrines were reviewed and facts applied.  But no matter what the issue – intervention in Syria or elsewhere in the world, disruption of a terrorism threat, cyber aggression – knowing what the law says was almost always just the threshold question, not the end of the inquiry.

While you are seated at this table, imagine the questions continuing to come at you; the stakes are exceptionally high and the time is exceedingly short.  This is when you will need to reach for your framework.

In the Situation Room you might confront the following question — are we or our allies confronting an “imminent” threat; is the force being contemplated to disrupt that threat “necessary and appropriate?”  The question comes to you:  Do facts exist to justify the path the group is leaning toward?   You ask yourself:  Do they?  Another way to put this is — and another question you might ask:  Is the exercise I’m engaged in lazy?  Is there rigor attached to this?  What do the experts say?  Are they even involved? Were considerations afoot that somehow left them and dissenting voices out of the room?  Are certain voices trying to drown out others who “just don’t get it”?  Are the arguments in favor leaning too heavily on a need for expediency, urgency?  Will you be able to look back and say the decision was reached through a process with integrity.  And even if the result is not perfect will it be more legitimate as a result of the questions you asked?

Another question that will be familiar to any 1L: is there precedent for the path you’re choosing?

Here in this imaginary room, at this future table – precedent should not be a straight jacket but a blinking yellow light that cautions you to avoid the result that is backed into.

Now some of you may be thinking that I’ve spent my time telling you to consider issues outside the law, to supplant hard analysis for values that divert you from a lawyer’s area of expertise.  That’s not in your client’s interest, you may say, the cardinal sin of the lawyer.

That is not my intent at all. I would argue that the ability to counsel a client about issues beyond just the law – such that you can convince them that, even if the law might say “yes”, the right answer is “no”– that’s the hallmark of a good lawyer.

Lawyers, particularly in public service, often confront decisions that are of such moment that, as Janet Reno used to say, you will be “damned if you do, damned if you don’t, so you might as well do the right thing.” As others have observed, the “right thing” can be hard to discern.  But the unwritten norms and institutional principles – the framework — that you operate with can provide ballast to transcend the immediate question, to help you navigate both what is allowed and what is wise.

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The story goes that when Ed Levi met with President Ford to discuss becoming Attorney General, Ford asked him what he thought the Department of Justice needed.  Levi is said to have answered – “a soul.”

As you go forth from here with skills that will allow you to answer any hard legal question, I wish for you the joy and privilege of exercising a unique responsibility – to provide the soul we all need to navigate the world ahead.

Congratulations.

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About the Author

Distinguished Senior Fellow at New York University Law School, Senior Fellow at the Belfer Center for Science and International Affairs at Harvard, Former White House Homeland Security and Counterterrorism Advisor (2013-2017), Formerly Served in the Department of Justice as Federal Prosecutor, Chief of Staff to Former FBI Director Robert S. Mueller, III, and Assistant Attorney General for National Security