Lawyers for Trump

June 3rd, 2016

I can think of four reasons why an attorney would seek employment in a Trump administration. (I am assuming here that Trump has already won, and am not addressing who lawyers should vote for in the general election).

First, perhaps an attorney genuinely believes in Mr. Trump’s vision of the constitution and the rule of law. I’ve yet to meet such a person, but I’m sure he or she exists.

Second, perhaps the attorney is ambivalent or maybe partially sympathetic to Trump’s vision of the constitution and the rule of law, but seeks the job as an opportunity for professional advancement–namely, a prestigious administration job that can be parlayed into future successes. As Judge Kozinski explained, if you want to become a federal judge by the age of 35, “get into politics,” “never back a loser” and “get a job in Washington.” And who doesn’t want to be a judge? Working for Trump–who prizes loyalty above all else–checks several of those boxes. I’ve heard through the grapevine that law students and lawyers are already lining up for the transition team.

Third, perhaps an attorney disagrees with Trump’s vision of the constitution and the rule of law, but thinks that by working on the inside, he or she can have a positive influence on the direction of our republic. That is, he or she can serve as the Trump administration’s constitutional lodestar. Recent events involving Judge Curiel should disabuse anyone of this notion.  Trump currently has a trial pending before Judge Curiel. Any attorney who is worth his law license would tell Trump to stop publicly impugning the integrity of the court based on appalling racist rants. If, for whatever reason, there were valid ethical concerns (there are none) legal channels exist to pursue this route. But how can his legal team possibly look the judge in the face during the trial? The fact that Trump has continued his awful rants about Judge Curiel can mean one of two things: (1) his lawyers are telling him to stop, and he ignores them, or (2) his lawyers know better than to tell him to stop, out of a fear of being fired or not getting paid (he has a record of stiffing lawyers). If it is the former, any administration lawyers who think they can shine a light on the Constitution, and perhaps restrain his excesses, are kidding themselves. If it is the latter, any Schedule C attorneys should keep their resumes polished, or alternatively keep a resignation letter ready to tender. And don’t forget this is about a trivial fraud case, not a separation of powers conflict that could put his agenda in jeopardy.

Fourth, perhaps an attorney views the third category of lawyers as naïve, but has an ulterior motive in working for the Trump administration. Because The Donald cares so little about the courts and the rule of law, a smart group of lawyers in the White House under a committed Attorney General can engage in agency capture. That is, due to the size of the bureaucracy, and Trump’s apathy for legal matters, a stellar legal team can independently move the ball forward on constitutional issues, while Trump is distracted by other matters. The prime example of this would be judicial nominations. Trump won’t care about the judiciary, so they can can fill Article III with standout judges of their own choosing. The proposed short list is perhaps a manifestation of this approach. It was put together by some very savvy attorneys, and if I had to guess, Trump had no role in the selection process.  I am fairly confident that Donald Trump cannot distinguish Justice Lee’s corpus linguistics from Sara Lee’s caramel layer cake. (They’re both terrific!) But that apathy is precisely the problem. If the political headwinds blow strong, and the Democrats push back against nominees, he will quickly cave to deal for other things he believes in strongly. Maybe Trump will be faithful on his first SCOTUS nomination, but we still have to think about blue slips from blue states for dozens of circuit nominations–and those matter too. And you can be certain after Republicans denying Garland a hearing, Senator Schumer and company will want blood. Even Presidents who had a vision of the rule of law waffled when it mattered–Reagan on Kennedy, Bush 41 on Souter, Bush 43 on Miers. A President who doesn’t care about these matters will lack the fortitude at the top to fight when times get tough, and there are other, higher priority items to negotiate on.

Again, please note that there is not a fifth category: “Anyone but Hillary.” Under my hypothetical, Trumps has already won, and his administration is being staffed (no doubt his Justice Department would soon indict Clinton after his SCOTUS nominee completes the investigation into her emails).

I should note in closing that when I wrote my piece in National Review, “Trump’s Constitution of One,” I fully understood the consequences: this would torpedo any conceivable job that I could possibly have obtained in a Trump White House–especially from a Chief Executive who so highly prizes loyalty. That article, arguably, came at a personal sacrifice for me. (Though, as the above analysis ought to make clear, I think the potential risks far outweigh the short-term gains). Principles are worth standing for.