Justifying the DOJ Resignations on Principled and Consequentialist Grounds

My latest Verdict column discusses the wave of resignations by Department of Justice lawyers following the demand by acting Deputy Attorney General (and until very recently Trump defense lawyer) Emile Bove that SDNY prosecutors file a motion seeking dismissal of the corruption charges against NYC Mayor Eric Adams. In addition to praising the integrity of the lawyers who resigned, I locate the issues at stake in the confrontation within the larger context of the Trump 2 administration's efforts to induce SCOTUS to adopt a super-strong version of the unitary executive theory.

Here I want to address a related question: Did the DOJ lawyers who resigned rather than do Trump's dirty work accomplish anything thereby? To cut to the chase, the answer is a resounding yes.

Even if some utilitarian calculus could show that by doing Trump's bidding the DOJ lawyers could have mitigated the awfulness of other aspects of the administration's actions, it would still have made sense to resign rather than engage in what they recognized as a corrupt act. Except perhaps if you are under deep cover in a criminal organization or a spy working behind enemy lines and don't want to blow your cover, if your superiors ask you to commit a clearly illegal and/or immoral act, it is very much appropriate as a matter of personal integrity to refuse, even if you are confident that the superiors will find someone else to do the deed.

Or, as SDNY Assistant U.S. Attorney Hagan Scotten put it in his fiery letter to Bove protesting the latter's transparent effort to use the possibility of a new indictment against Adams as leverage to render him Trump's de facto vassal on immigration enforcement:

any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it never was going to be me.

From the standpoint of personal integrity, the key sentence there is the last one. Scotten was simply not going to participate in what he (almost certainly correctly) regarded as corruption, even though someone else--some fool or coward, to be precise--would eventually substitute for him.

Is there also a consequentialist argument for resigning in the way that Scotten, SDNY acting US Attorney Danielle Sassoon, and others did? In many circumstances, publicly resigning is a form of whistle blowing. And that appears to have been part of what Scotten in his letter and Sassoon in her letter were attempting. After all, if Scotten and Sassoon were concerned only about acting with personal integrity, there would have been no need to go public with their reasons for objecting. They could have quietly stated that they refused to participate and, if necessary, quietly resigned.

By taking a public stance against Trump's corruption of the DOJ, Sassoon, Scotten, and other lawyers who made their resignations known might have helped themselves in the long run. In the event that American constitutional democracy survives the second Trump term and that there is a place in the post-Trump political landscape for principled conservatives, people who made known that they placed the rule of law ahead of fealty to Trump will have opportunities that, one can only hope, will be denied to the Trump apologists and quislings. But I will not ascribe such calculating motives to any of the DOJ lawyers who resigned, both because I have no reason to question their commitment to principle and because there is no way to know at this point whether the better career move (if one thinks strictly in terms of personal advancement) is to resist or to cave in to Trump and his movement. After all, the vast majority of elected Republicans have concluded that there is no place for people of principle in the future.

What about the public? Are we better off for the public resignations of the likes of Sassoon and Scotten?  Before answering that question, I will say that we are not worse off. During the first Trump administration, the likes of Jim Mattis, John Kelly, and Pat Cipollone apparently could sometimes be the adults in the room who protected the country from Trump's worst instincts by persuading, distracting, or simply ignoring their boss. In this second term, Trump has filled his inner circle with true believers and yes-men who have made clear to their subordinates that anyone who tries to resist from within will be dismissed--and possibly be subjected to frivolous but expensive-to-defend-against charges or even made the target of assassination efforts. Thus, staying and working within the administration to redirect it was not a fruitful option.

That brings us to the question whether the whistleblowing by Sassoon, Scotten, and others was not merely harmless but actually beneficial. There is some reason to be skeptical. The fact that these whistleblowers have impeccable conservative credentials won't matter to the MAGA faithful. Liz Cheney has impeccable conservative credentials--in fact is more conservative than Trump, who is completely a political opportunist. However, in today's Republican Party and its media ecosystem, any sign of disloyalty to Trump is taken as irrefutable proof that one is a RINO. Thus, I don't think that the alarm sounded by the DOJ lawyers' resignations will register with the base of voters that Trump cares about and that Republicans in Congress fear.

We nonetheless have good reason to think that the public resignations will have--indeed, are already having--a salutary effect. They potentially stiffen the spine of others who may be on the fence about whether to succumb to the pressure to bend the knee--whether in government or elsewhere. Trumpism will not be defeated unless and until a critical mass of people with something to lose speak up and stand up.

Put differently, Scotten's letter did not call out only those foolish or cowardly other lawyers who are willing to kiss the mad king's ring. It also called out fools and cowards in other institutions who have but don't exercise the power to say no because they are too craven to do so--whether that means Jeff Bezos neutering the Washington Post to curry favor with Trump, the NCAA immediately adopting Trump's anti-trans agenda, or Disney paying $10 million to settle a completely bogus lawsuit against ABC News and thereby effectively pay a bribe to Trump.

Most directly salient, I would not be at all surprised to learn that the four NYC Deputy Mayors who resigned yesterday were inspired to do so by the examples of Sassoon, Scotten, and the five other DOJ lawyers who quit rather than be a part of Trump's scheme to render Adams and thus NYC his anti-immigrant instrument. Their statement did not directly accuse Adams of making a corrupt bargain with Trump, but that view could be readily inferred from their inclusion of this line: "Due to the extraordinary events of the last few weeks and to stay faithful to the oaths we swore to New Yorkers and our families, we have come to the difficult decision to step down from our roles."

Should NY State Governor Kathy Hochul now remove Mayor Adams, as she is contemplating doing in response to the resignation of the Deputy Mayors, we will be able to trace a line from the DOJ lawyers' resignations to the frustration of the efforts by Trump and Bove to improperly use prosecutorial power to influence unrelated policies. Indeed, even if Hochul does not remove Adams, the political fallout for Adams will be consequential.

Finally, I want to emphasize the point with which I began: the resignations by the DOJ lawyers were justified on grounds of personal integrity, regardless of their salutary consequences.