Mimi Rocah, a former prosecutor, surmises: “There are DOJ lawyers not willing to lose their integrity with the courts for Trump. I’m proud to see that. And judges will notice too.”
Others agree that swapping out lawyers is highly unusual. “It’s extraordinary and downright bizarre to see the government parachute in new lawyers at this late stage of the litigation,” says legal scholar Joshua Matz. “If past is prologue, this may indicate that we’re about to see some extremely sketchy moves that the existing team was unwilling to take for professional or reputational reasons.” That the administration would have to go so far afield, to recruit consumer protection lawyers, “suggests that the entire federal programs branch of the Justice Department is unwilling to defend whatever the administration plans to file.”
This is not the first time in this presidency a set of lawyers has dropped out of a case brought on specious grounds. In the case seeking to invalidate the entire Affordable Care Act, three career attorneys withdrew without signing onto a brief many considered legally preposterous.
There are several significant issues to consider here.
First, Canon 7 of the Code of Ethics for lawyers makes clear that a lawyer cannot blindly follow a client’s direction. This is especially true when the government is the client:
A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. A government lawyer not having such discretionary power who believes there is lack of merit in a controversy submitted to the lawyer should so advise his or her superiors and recommend the avoidance of unfair litigation. A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and should not use his or her position or the economic power of the government to harass parties or to bring about unjust settlements or results. The responsibilities of government lawyers with respect to the compulsion of testimony and other information are generally the same as those of public prosecutors.
The client, keep in mind, is the government for the people of the United States. While you would be forgiven for thinking otherwise, Justice Department lawyers are not Trump’s personal counsel.
As stated in the canon, a prosecutor or a civil litigator for the government has a higher obligation than would normally attach to a lawyer with a private client. For an ordinary lawyer, “conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law.” If a position or argument is remotely plausible, a private attorney can try it. “Whatever flies” is not the legal standard, however, for Justice Department lawyers. Is their argument factually and legally sound, and does it serve the interests of justice? That is what they should contemplate.
Second, whoever takes over for the first set of lawyers and the attorney general is bound by these very same rules. If, for example, the first team of lawyers determined that there is no precedent allowing a president to override a Supreme Court ruling by executive order, and in fact such a contrivance would violate the entire structure of checks and balances, everyone in the Justice Department should be bound by this determination — unless the first team of lawyers got it wrong. Did this team get it wrong, or did it refuse to make an argument that could not be justified?
Third, Congress can try to obtain documents and/or testimony shedding light on the decision to change lawyers, but the administration infamous for stonewalling is unlikely to cough up the evidence. That said, the district courts where the litigation continues are permitted to inquire as to the reasons for the change and determine whether the switch in counsel adheres to the ethical code of conduct. Given how many times the administration has misled the courts (e.g., contriving a June 30 deadline for printing, proffering a false reason for the citizenship question), the district court judges should feel compelled to figure out what is going on here. As Matz says, “It would be appropriate for judges overseeing the Census cases to require the government to submit affidavits explaining and justifying this disruptive, unexpected development. The Census cases have already produced a shameful slew of ethics issues and the Trump Administration clearly intends to wade deeper into that morass.”
Finally, every Justice Department lawyer, if not guided by personal or professional ethics, should pause to consider the implications of his or her involvement in a case that might be attempting to create a phony census count to minimize counting of nonwhites for purposes of reapportionment and/or government services. This would not only be an ethical violation as a lawyer but also an egregious violation of his or her oath to uphold the Constitution. At some point, the lawyer’s actions will be assessed by state bar authorities, prospective private employers, future administrations making hiring decisions and Senate committees performing their duties to offer advice and consent on nominations.
Not to put too fine a point on it, but what these lawyers do will have profound consequences for the country and their careers. Constitutional scholar Larry Tribe warns, “The Department of Justice cannot avoid the long-term credibility cost to its litigating posture of contradicting itself in successive filings simply by changing the names of the career DOJ lawyers on the pleadings or by bringing new faces into court. If that’s the aspiration, it’s not going to succeed.”
The new team of lawyers should think very carefully before accepting an assignment from an attorney general not above misrepresenting the work of a special counsel or adopting the role of the president’s private counsel.