Why Government Officials Have a Duty to Defy the President
The case for actively defying a President.
What is the appropriate means of expressing dissent against an order that might be legally defensible, but that is widely considered to be immoral?
Acting Attorney General Sally Yates was fired by the Trump Administration last week after delivering a letter to top Department of Justice officials announcing that she would not defend the Administration’s controversial immigration executive order. Yates’ decision raises a critical question that government officials and others will undoubtedly grapple with over the coming four years: What is the appropriate means of expressing dissent against an order that might be legally defensible, but that is widely considered to be immoral?
Many experienced commentators, notably Benjamin Wittes, Susan Hennessey, and Jack Goldsmith of Lawfare (an influential national security law blog), assert that, absent blatantly illegal orders, government dissenters should utilize the traditional means of dissent: resignation. We contend that, faced with an Administration that is existentially threatening to American democratic norms and institutions, civil servants have a duty to consider more forceful expressions: noncompliance or active obstruction.
Faced with an Administration that is existentially threatening to American democratic norms and institutions, civil servants have a duty to consider more forceful expressions of dissent: noncompliance or active obstruction.
Yates’ refusal to defend the immigration order rather than to resign is illustrative of one such approach. The public act of defiance attracted significantly more attention than a resignation would have to the order’s malevolent aspirations. She used her powerful and visible platform to make an emphatic declaration about an individual’s moral and professional responsibility to lawfully obstruct orders that are unquestionably unconscionable and potentially unlawful.
In her letter to Justice Department officials, Yates explained that her role in the Department was not only to determine the legality of the President’s order (which she considered to be unlawful) but also to ensure that the “positions the [Department] takes in court remain consistent with [the] institution’s solemn obligation to always seek justice and stand for what is right.”
Attorneys General typically evaluate the legality of orders based on whether there are reasonable arguments to be made in their defense or as compelled to by the President. Yates, however, adopted a more comprehensive interpretation of her role in facilitating justice. She recognized the sinister nature of the immigration order and bravely undertook her ethical duty to legally impede it in the most resounding and categorical manner she could.
Her view was validated by the recent U.S. District Court decision to issue a temporary restraining order against key provisions of the executive order on the basis of the irreparable injury they might cause and the merits of the legal challenge.
Yates’ defiance follows a rarely used but longstanding precedent. In 1973, Attorney General Elliot Richardson and Acting Attorney General William Ruckelshaus refused to comply with Nixon’s order to fire Watergate Special Prosecutor Archibald Cox. Nixon, who wanted to derail the investigation, instructed the Attorneys General to fire Cox for insubordination after he subpoenaed tape recordings of White House conversations.
Like Yates, Richardson and Ruckelshaus recognized the President’s sinister intention and defied him on moral grounds, citing a promise they had made to Congress not to fire Cox without cause.
After Richardson resigned and Ruckelshaus was fired, incoming Acting Attorney General Robert Bork fired Cox in order to stay on as Acting Attorney General. According to Bork, he did so to prevent the Justice Department from falling apart and to ensure that the Watergate investigation would continue under Cox’s deputies, thereby actively obstructing Nixon’s efforts to scuttle the investigation. Nixon resigned a year later.
Few would criticize the use of noncompliance by Nixon’s Attorneys General in that exceptional circumstance.
Today, we recognize these acts of defiance as right and, indeed, courageous. Few would criticize the use of noncompliance and obstruction by Nixon’s Attorneys General in that exceptional circumstance.
This approach would not be appropriate under “normal” circumstances. Officials, as a general rule, should resign if they are unwilling to discharge duties that they find to be dubious. In fact, in those cases, the threat of a resignation itself may be sufficient. In 2004, for example, the threat of mass resignations of Bush Administration officials was sufficient to significantly curtail NSA warrantless wiretapping. But would a resignation or the threat thereof, however blustering, carry the same weight with a Trump White House today?
Unlikely. This Administration has provided sufficient evidence of its disdain for existing norms and traditions and its immunity to public shame.
Moreover, given the current federal hiring freeze, resignation as a tactic runs the risk of hollowing out the ranks of experienced and principled servants and, in some cases, making room for political partisans eager to comply with the Administration’s more perverse and potentially unconstitutional edicts.
It is imperative that civil servants set an exceptionally high threshold for deciding when to use noncompliance.
We recognize that advocating for unelected bureaucrats, or even political appointees, to actively obstruct the orders of a freely and fairly elected president could set an alarming precedent that itself could undermine our democratic norms. We’d have a wholly dysfunctional government if every civil servant defied orders that they considered to be immoral or unwise. It is, therefore, imperative that civil servants set an exceptionally high threshold for deciding when to use noncompliance.
The Trump team’s rhetoric and actions — undermining faith in democratic institutions (the judiciary branch, U.S. elections, and the press), calling the family members of suspected terrorists legitimate targets, considering reinstituting torture and creating a Muslim registry, praising authoritarians and alienating our closest allies, just to name a few — constitute a strong basis for noncompliance. Many of this Administration’s more pernicious actions may continue to fall in the grey-zone of the “possibly legal” but “morally abhorrent”. We should not allow this superficial ambiguity to disarm one of our most critical defenses and slowly chip away at our institutions.
Many government officials are today demoralized and afraid of the looming dangers ahead. The principal goal should be to embolden and to support these individuals, most of whom have much less visibility and stature than Ms. Yates. They should be reminded that, on matters of grave immorality and questionable legality, their paramount obligation is to their principles, in addition to the law and the Constitution, and that effectuating these duties might, in some instances, require active defiance of the Administration, noncompliance, and even obstruction of executive policy.
Playing by the old rule book is a dangerous proposition and one that we are likely to regret once the last leg of our liberal democracy is gutted as we sit in polite dissent.
Historians, national security experts, and political commentators from across the political spectrum, including conservatives like William Kristol and Eliot Cohen, have expressed it clearly: the Trump Administration is not normal. These are not normal policy disputes. This Administration is an existential threat to American values and democratic institutions, and we would be wise to emulate Sally Yates’ example. Playing by the old rule book is a dangerous proposition and one that we are likely to regret once the last leg of our liberal democracy is gutted as we sit in polite dissent.
