I was very sorry to have to decline the invitation to appear on a panel at the ACS Convention entitled “Should I Stay or Should I Go? Deciding Whether to Serve in an Unfriendly Administration,” not least because of the allusion to a great song by the Clash. As it happens I considered exactly this issue. Although I am a lifelong Democrat of the squishy Clinton-Gore centrist variety, I would have no compunction about serving in the administration of, say, Mitt Romney, Marco Rubio or Scott Walker. I clerked for a conservative federal judge for whom I have the greatest respect, and have spent much of my career as a scholar defending the apolitical ideal of the rule of law – not the public interest or one’s personal integrity – as the central normative principle underlying legal ethics. But as a candidate and in the first several months of his presidency, in his words and in his actions, Donald Trump has consistently expressed hostility to separation of powers, the rule of law and traditional mechanisms of accountability. The best advice for an ethically conscientious lawyer, regardless of political ideology, is to steer well clear of service in this administration.
Many thoughtful people have addressed this question. David Luban and Deborah Rhode, two of the wisest legal ethicists in the business, both addressed the moral and psychological issues of serving a president who is openly contemptuous of the rule of law. Prolific national security law and policy commentator Ben Wittes wrote about this question several times, starting in summer 2016 – see his subsequent posts here, here, and here. More recently Jack Goldsmith and Quinta Jurecic, writing like Wittes on the Lawfare blog, revisited the issue in the wake of the firing of FBI Director James Comey. Finally, my colleague Mike Dorf wrote about the problem of “people with good intentions and reputations for integrity who take at-best questionable actions.” Three important points emerge from this discussion.Read More