Wednesday, January 27, 2021
Mixed Feelings from a Department of Justice Alum About the Belated Ethical Stand by DOJ Leaders at the Close of the Last Administration
After working as a legislative assistant to a U.S. Senator on Capitol Hill and clerking for a U.S. Court of Appeals judge, I was fortunate to be chosen through the Honors Program to become an appellate attorney at Main Justice in Washington, D.C. For three years, I represented a wide variety of government officials (from the President and Cabinet secretaries to line government employees) and federal agencies (from the Central Intelligence Agency and Department of Defense to the U.S. Postal Service). I was the attorney on appellate cases in the U.S. Courts of Appeals and the Supreme Court. The subjects ran across the civil litigation spectrum, from constitutional challenges to government programs to simple tort claims against the government.
That wonderful opportunity for a young lawyer proved to be the beginning of my life's work.
As a law professor, I have devoted much of my academic attention to civil litigation involving the federal government. I have authored the hornbook on "Litigation With the Federal Government," published by West Academic Press in 2016 and now on contract for a new edition in 2022. I have also published the only law school casebook on the subject, having now taught the course more than a dozen times. I have written many, many scholarly articles on jurisdiction over government cases, contract and takings disputes with the federal government, attorney's fee recoveries against the federal government, the Federal Tort Claims Act, etc. Most recently, I have been working on federal government accountability for official wrongdoing, with a focus on redressing sexual violence perpetrated by federal employees.
My pro bono appellate practice over the past decade has put me more than once on the other side of the Department of Justice, when I have been court-appointed counsel for those bringing claims against the federal government and when I have written or joined amicus briefs in the Supreme Court. When appearing opposite DOJ attorneys in court, I have continued to appreciate the professionalism and high standards of ethics of federal government attorneys. As any good lawyer will tell you, it is much easier and more satisfying to litigate against good and responsible attorneys, while it is hard and unpleasant to litigate against poor attorneys. And with the DOJ, you interact with the best of the best. Thus, even as a litigation opponent, my affection for the DOJ remains strong.
Because of those sentiments and my hard-earned knowledge of the vital importance of this legal institution, I have been heartbroken to watch the politicization of the Department of Justice over the past four years by the Trump White House. Especially under Attorney General Barr, DOJ has too often been degraded to the personal law firm of Donald Trump. DOJ’s true mission is to serve as the legal counsel for the federal government as a whole, bearing allegiance not to an individual but to the United States. The devolution of DOJ during the Trump Administration has undermined its role as an independent source of legal advice for the government and executive officials, tarnished its reputation before the courts and public, and caused many of its best and brightest to leave Main Justice.
It was with mixed feelings that I learned of former President Trump’s final disgraceful attempt to recruit the DOJ as a legal foot soldier in his misguided army of insurrection against democratic governance.
We have learned here that Trump tried to get the Department of Justice to file a frivolous legal brief in support of his fact-free legal challenges to the outcome of the election in swing states. The leaders of DOJ — people that Trump himself had appointed and had been confirmed by the Republican Senate — rightly refused to do so. They could not ethically go on the record in court of asserting fraud when there simply was not evidence to support it. No legitimate officer of the court could put his or her name to a brief that made false statements to a court. No lawyer who did so would keep his or her legal license.
Judge Patricia Wald once articulated the “higher standard” for a government lawyer by setting out the five “C’s”: a higher level of competence, greater candor, credibility by virtue of the attorney’s confidence in the position advocated, a greater concern for civility, and consistency in government positions taken before the courts. It is not surprising then to learn that the DOJ’s ethics watchdog is investigating whether any DOJ employee collaborated in the attempt to overturn the democratic election, as neither competence nor candor could be upheld by endorsing the false and misleading conspiratorial thinking that emanated from the Trump campaign to reverse the election and cling to power.
No one in Trump's circle has ever presented any genuine evidence of election fraud that would have changed the outcome in any state, much less four or five states. Trump and his increasingly smaller cadre of allies repeatedly promised that there would be a big reveal at a television appearance on this or that date or at the next Trump rally. Then that appearance by a Trump advocate on Fox or other right-wing media or that next rally would come and go without any evidence. The repeatedly promised "blockbuster" of evidence never came. Instead, as we heard from Trump's own mouth in the taped telephone call with the Georgia Secretary of State, Trump's accusations were based primarily on what he or someone else had seen on the internet or in social media. Anyone who would take an official position based on internet gossip would demonstrate a degree of gullibility that would disqualify him orh er from being taken seriously in any setting.
Even worse, we have also heard here that Trump considered replacing the acting Attorney General with a rogue DOJ official who apparently was willing to back Trump's false claims of widespread fraud in the election. Going behind the Attorney General's back, this official reportedly plotted with Trump to fire the Attorney General, have himself appointed as temporary Attorney General, threaten Georgia officials with unfounded investigations of fraud, and file baseless supporting briefs, all designed to overturn the election result. This plot failed because every other Trump-appointed and Senate-confirmed leader in the Department of Justice promised to resign in protest if Trump were to take this outrageous step.
I said above that I had mixed feelings about this. Let me explain.
On the one hand, it is disturbing that any lawyer associated with the U.S. Department of Justice would participate in Trump's “Big Lie” that the election was rigged. To be sure, if Trump had forged ahead and installed a pretender as Attorney General, the gambit would have failed as spectacularly as every other Trump attempt to overthrow the democratic results. Not only would perversion of the Department of Justice toward Trump’s narcissistic goal have failed, it would have become yet another example of the self-destructive behavior of a disordered personality. The news of the last-minute appointment of a sycophantic Attorney General, followed by the mass resignation of all of Trump’s other appointed DOJ officials, would have been yet another scandal. Any supposed investigation of fraud would have gone nowhere. And any anti-election legal briefs filed by a newly-installed rogue Attorney General would have been laughed out of court, just as has been every other of Trump’s unfounded legal claims. But harm still there would have been. The corruption of the integrity and reputation of the DOJ would have reached a new low.
On the other hand, I was heartened to learn that every other DOJ leader stood in solidarity with principle to do the right thing.
I understand that many would offer little or no praise to these officials, regarding them as already damned for being willing in the first place to serve in this ethically-challenged administration, especially after the politicization of the DOJ accelerated under Attorney General Barr. I do not join in that condemnation. Service in the DOJ in any administration should be undertaken with integrity, even if the Trump Administration made it very difficult. Moreover, while we can agree that President Trump never deserved fealty, we nonetheless should now welcome a belated recognition by a growing number of former followers that he is not worthy of their faith. As Justice Frankfurter put it: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”
The key is, these DOJ leaders did the right thing. At long last, there was a bridge too far. Professional standards of ethics prevailed. That is worthy of praise — and a sigh of relief.
The whole episode is one further reminder that character does matter in public office. Before the November election, friends and others who advocated re-election of President Trump often said that they realized he was a person of low character and behaved badly, that he really was an awful human being, and that he often embarrassed people of faith with his scandalous remarks and lack of charity. Yet they insisted that his position on the key issues was the only thing that mattered. We were voting for a political agenda, they would insist, not for head pastor.
Those arguments ring even more hollow now after the Trump-inspired insurrection at the Capitol. And the since uncovered attempts to corrupt the Department of Justice are further evidence that having a man without a conscience and incapable of truth in the nation's highest position was an ever-present danger for our Republic.
Although perhaps later in time than we would have wished, we all should be thankful for the integrity of those in the Department of Justice who refused at long last to go along with the Trumpist campaign to overturn democracy. We should be thankful for the few, but honorable, Republicans in the Senate who both rejected this anti-democratic insurrection and who rightly placed the blame for the deadly Capitol riot right at the foot of Donald Trump. Let’s pledge never again to let someone so plainly unfit by psychological disorder and moral failings to get within ten miles of the White House.