Below is my recent column about a type of new article of faith for lawyers in opposing President Donald Trump and his Administration. Here is the column:
It seems these days like lawyers are proving Jeremy Bentham correct that “lawyers are the only persons in whom ignorance of the law is not punished.” Frankly, President Trump appears to bring out the worst in some lawyers. Indeed, opposing Trump appears to be a new article of faith for lawyers, including some who have been lionized for conduct that is facially unprofessional and arguably unethical.
Sally Yates and the obstruction of executive power
The strange influence that Trump has on lawyers was immediately apparent within days of his taking the oath of office. Acting Attorney General Sally Yates ordered the entire Justice Department to stand down and not to assist the president in the defense of his first executive order on immigration. In a letter to the president, Yates said she was not convinced that the law is just or right.
It was a curious position since the Justice Department argued for the last eight years, and as recently as 2016, that President Obama had sweeping authority over immigration. It is also the Justice Department that defended the alleged “torture program” under the Bush Administration without Yates or others taking such a stand. Yet, Yates effectively dared Trump to fire her over the immigration order and he did so.
Yates was immediately celebrated as a hero by many. Sen. Charles Schumer (D-N.Y.) called her firing another “Saturday Night Massacre,” referring to Nixon’s forcing the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus. Yates, however, was less a political massacre as it was a ritualistic suicide. Yates could have resigned like Richardson and Ruckelshaus.
Indeed, she only had a couple days left at Justice Department. But she sought to prevent an entire federal department from supporting a sitting president of the United States. It was a highly unprofessional act that raised serious ethical questions about the duties of a government lawyer. Among the bar rules controlling the conduct of lawyers in Washington, Rule 1.3 requires any withdrawal to be done without harming the client.
Yates did not conclude that the order was unlawful but was simply not convinced of its legality even though many (including lawyers at the Justice Department) argued that the president had this authority. She articulated a reason to resign from her position but not to obstruct a president. Under the same logic, Yates’ position would allow officials to obstruct a host of executive actions based on the failure of the president to convince them of their wisdom.
Monica Herranz and the shielding of illegal immigrants
Oregon Judge Monica Herranz allegedly was not satisfied with just ordering staff not to assist the Trump administration. Herranz held a hearing with Diddier Pacheco Salazar, 22, an illegal immigrant who pleaded guilty to a driving under the influence (DUI) case. Immigration officers were waiting outside of the courthouse to take Salazar into custody. However, he never emerged. When they went into the courtroom, he was gone. U.S. Immigration and Customs Enforcement (ICE) officers accused Herranz of allowing Salazar to use her personal chamber door to evade the officers.
If true, it was an act of knowing obstruction. It further contravenes federal law which makes it a crime to conceal, harbor, or shield an illegal immigrant from detection. Nevertheless, the U.S. attorney declined to criminally investigate the judge who will instead be subject to possible judicial discipline. In the meantime, many are celebrating a judge who is accused of using her judicial office to obstruct the enforcement of federal law.
Preet Bharara and the refusal to resign from his post
Most recently, the U.S. Attorney for Manhattan, Preet Bharara, took a baffling position in refusing a presidential directive to resign. The most charitable thing to say about Bharara’s action is that it was more unhinged than unethical. After Attorney General Jeff Sessions asked for the resignations of all U.S. attorneys, a standard change of political appointees in a new administration. New administrations (particularly with a change of party) often demand such resignations. Bill Clintondemanded the resignation of all U.S. attorneys and no Democrats or liberals objected. George W. Bush had more of a transition but ultimately replaced all but one U.S. attorneys.
Ironically, presidents will sometimes ask for global resignations from political appointees only to decline to accept some on an individual basis. Bharara’s action guaranteed that he would not be one of them. U.S. Attorneys Dana Boente and Rod Rosenstein did submit their letters and the president reportedly declined to accept their resignations. We will never know if Bharara might have been on that short list because he placed himself on an even shorter list in refusing to resign.
Bharara said that he believed that Trump agreed to have him continue as U.S. attorney. Yet, even that is true, what professional standard is Bharara relying on for this obstructive position? Bharara is a rebel without a cause. He has no vested interest in this political position even if a promise were made. Yet, he is being again lionized for his highly unprofessional and frankly juvenile demand that he be fired. Harvard Law Professor Laurence Tribe tweeted Bahara “is a hero. His firing was no ordinary turnover.”
All U.S. attorneys serve at the pleasure of the president. Bharara insisted on being fired despite the fact that Trump was entirely within his right to ask for resignations and was following the course of other presidents. It is hard not to conclude that Bharara was using his office to try to embarrass the president of the United States. By doing so, he played to political passions rather than performing his professional duties.
Attacking or obstructing Trump appears to be an accepted exemption from long-standing rules of legal practice and judgment. It is the legal version of the papal indulgences, which once forgave or reduced the punishment for sins. The legal indulgence appears to allow (and even celebrate) unprofessional acts, when taken in opposition to Trump or his administration. However, legal rules mean little if they become discretionary when they might support Trump. And if legal rules mean little, then lawyers will mean even less in this administration or any administration.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory and has been published in the law journals of Harvard, Cornell, Duke, Georgetown, and Northwestern University.