Even before the 2020 election is decided, there has been an almost unnatural amount of attention dedicated to what comes next. Specifically, what comes next for Donald Trump and the potential criminal liability he may face in the coming years. Jonathan Chait has written about the moral imperative to hold Trump liable for his illegal conduct in areas ranging from white-collar crime to abuse of the pardon power to violations of the Hatch Act, as a means of restoring the norms and values of the law. Sam Tanenhaus has observed that perhaps the nation would be better served by a blue-ribbon commission, modeled on the Church Committee, to probe Trump’s wrongdoing. Bob Bauer and Jack Goldsmith differ only as to the wisdom of undertaking a criminal prosecution. But all of these inquiries elide a question that is almost more central to any kind of reckoning about what happened to the rule of law under Donald Trump: What is to be done with his enablers?
If Mary Trump is correct, and I believe she is, the ethical problem isn’t limited to Donald Trump. The problem is also the many powerful people who—under the guise of “minimizing the damage” or behaving as “adults in the room”—sanctioned, effectuated, and enabled rampant lawlessness ranging from family separations to attempting to bribe Ukraine into interfering with the 2020 election. Let’s just say it outright: Donald Trump managed to do what he did with the help of dozens of lawyers—lawyers who have either slid out of the public debate and into big law firms or continue to aid and abet.
What I am most curious about is whether law firms have any affirmative obligation to refuse to give cover to the lawyers who performed the dirty work of the Donald Trump legal dumpster fire.
To be sure, it is a lawyer’s job to help her client achieve certain goals and policies. Nobody would dispute that lawyers lawyering is how law gets made. But lawyers also have ethical obligations, under their various state bars and under broader ethics rules. Those rules include the obligations not to lie, not to violate certain ethical standards, and not to assist your client when he is dead set on breaking the law or harming, say, other people. These aren’t gauzy choose-your-own-ending rules. They are clear, and they are widely agreed upon.
So what, then, are we meant to do with what I have come to think of as the Big Law power-wash, wherein Trump administration officials with documented histories of deception, misconduct, or misrepresentation are welcomed back into the fold with open arms because at the end of the day, we assume that powerful corporate clients will benefit more from their names or access to power than they might be harmed by the taint of, say, separating toddlers from their parents at the United States border?
In a sense this is a mirror image of the power-wash engaged in by the academy, which was quick to welcome the Sean Spicers and Marc Shorts onto their campuses, under the guise of academic freedom and intellectual balance. The academy gives legitimacy to the enabler, and in exchange, the enabler serves the interests of the academy. Big business is also hard at work laundering the résumés of other Trump functionaries. But what I am most curious about is whether law firms have any affirmative obligation to refuse to give cover to the lawyers who performed the dirty work of the Donald Trump legal dumpster fire. Take for instance Rod Rosenstein, whose role in the Trump administration’s unlawful 2018 family separation policy was revealed by a recent New York Times report. We now know that former Attorney General Jeff Sessions and Rosenstein, the former deputy attorney general, played a direct role in that policy—that it was Rosenstein who told John Bash, who had declined to prosecute two cases involving children under the age of 5, that he was wrong to do so under the “zero tolerance” policy. We also know how many people in the administration lied about that policy.
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As Jennifer Senior notes, Rosenstein had an explanation for his role: In a letter to the New York Times, he explained that he was not responsible for developing the “zero tolerance” policy; he merely clarified what it meant. “I correctly told U.S. Attorneys that the Attorney General did not want them to decline cases for categorical reasons,” he wrote, “but I expressly advised U.S. Attorneys that they were NOT required to prosecute every immigration defendant arrested by the Department of Homeland Security.” As Senior went on to observe, “It’s a very cautious, lawyerly statement. But note what Rosenstein did not deny: That he refused his U.S. attorneys permission to automatically exempt undocumented immigrants with young children from prosecution.” He allowed the policy to chug on without a word of public concern. It wasn’t his policy. He was just doing his job, after all. This is what allowed such policies to go on, unchecked. It doesn’t make him a villain, as Senior concludes, instead “he’s a man of a rather banal morality. … [H]e seems to have done exactly what it took to survive in the Trump Justice Department—which was to tell U.S. Attorneys that they should not decline to prosecute undocumented immigrants just because those immigrants had very young children.” Maybe it doesn’t warrant a war crime tribunal or disbarment. But does it warrant lucrative positions in big law firms, like King & Spalding, that will serve to whitewash that same banal morality under a post-Trump fog of “everyone was doing it” warfare?
As another example, take John Gore, formerly the acting head of the DOJ’s Civil Rights Division but now back in the saddle at Jones Day. Gore was the author of the letter sent in 2017 to Commerce Secretary Wilbur Ross directing that a citizenship question be added to the 2020 census. Why did the Justice Department require that question? According to the letter, so that DOJ could better enforce the Voting Rights Act “and its important protections against racial discrimination in voting.” As ProPublica reported in 2018, Gore came from Jones Day to the Justice Department, “where he was an appellate specialist best known for defending a range of Republican state redistricting plans that were attacked as racial gerrymandering by opponents.” After the debacle of the citizenship question was rebuffed by the courts, Gore faced allegations of providing false testimony and concealing evidence as part of the lawsuits over the addition of the question. In April of 2019, Gore refused to comply with a congressional subpoena in a House panel investigation of the origins of the citizenship question. He returned to Jones Day in August of 2019, despite evidence that the DOJ had lied about the origin of the question and lied about the author of the letter. There were also claims that Gore couldn’t recall material facts about the letter. A year ago, my colleague Mark Joseph Stern questioned whether there would be any consequences for Gore, but he now represents Pennsylvania Republicans seeking to disallow counting of mail-in ballots that are received after Election Day.
I am old enough to remember the misguided attempt to pressure Big Law into cutting loose lawyers who represented clients at Guantánamo Bay in the Bush era, lawyers such as Neal Katyal. This is not that. Law firms can and should support attorneys who take unpopular positions to help vulnerable clients pro bono. Law firms should not, however, be willing to take on, with no questions asked, attorneys who have assisted at the highest levels in the malfeasance, cover-ups, and material representations of the Trump era. The former is about using the machinery of the law to protect disfavored clients; the latter is about breaking the machinery of the law to protect powerful clients. This distinction should not go unremarked. More pointedly, other clients of the firms who take such lawyers back—clients who hold themselves out to be pro-family, pro-immigrant, and pro-women—might be inclined to balk at the fact that their counsel has a history of being none of those things. At King & Spalding, where Rosenstein now practices, it’s not just that other attorneys might object to his participation in a program of needlessly cruel and illegal family separations but big corporate clients, such as Airbnb, Google, or Coca-Cola, who might wonder whether their lawyers have any ethical basement to speak of. If I were Ms. Google, that sort of thing might not jibe with my own corporate zeitgeist.
Hard to know. Maybe whatever reckoning is coming for those who used their time in the Trump administration to break laws instead of defend them won’t penetrate the lofty glass buildings in which white-shoe lawyers can always smile and say they were just doing their jobs. But just as there aren’t always fine people on both sides of every cause, there simply aren’t always fine arguments on both sides of every case and controversy. If Donald Trump someday faces the consequences of his actions while his former lawyers swap out one powerful client for another, Trump and Trumpism won’t have been vanquished in America, it will simply have traded one kind of elite golf course for another.
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