I was a lawyer in the Justice Department when Donald Trump was elected President. I worked in the law firm where the presidents turn to permits showing that their executive orders and other measures under consideration are lawful. I joined the department during the Obama administration as a professional attorney whose work was supposed to be politically independent.
I’ve never had delusions about a Trump presidency. Mr Trump willingly volunteered to dismantle our democracy, but I chose to stay in the Justice Department – home of some of the best lawyers in the country – for as long as I could stand. I believed I could serve our country better by pushing back from the inside than by keeping my hands clean. But I’ve come to reconsider that decision.
It was my job to adapt the executive actions of the administration so that they are lawful. If I limit it, I can also make it less destructive. I continued to strive to keep my oath even though the president refused to keep his.
But there was a compromise: we lawyers reduced the immediate harmful effects of President Trump’s executive orders – but we also made them palatable to the courts.
This became public knowledge early on in the Trump administration when it came to the executive order to ban travel from several predominantly Muslim countries, which my office approved. The first Muslim ban was rushed out the door. It was peppy and sloppy; The courts quickly put an end to it. The successive discriminatory bans benefited from more time and attention from the department’s lawyers, restricting them but also making them more technocratic and therefore more difficult for the courts to block.
After the June 2018 Supreme Court ruling confirming the third Muslim ban, I was reviewing my own portfolio, which included affairs against non-citizens, dismantling the civil service and camouflaging the president’s corruption, and feared I would do more Would do harm than good. I had left my job by that year’s Thanksgiving Day.
Still, I felt like I was leaving the ship. I continued to believe that having a critical mass of responsible attorneys who remain in government could be a last line of defense against the government’s worst instincts. Even after I left, I advised others that if they stayed, they could do good. News reports of significant setbacks from Justice Department attorneys seemed to confirm these considerations.
I was wrong.
When I look at the Trump campaign’s attacks on the election results, I now see what could have happened if the Justice Department attorneys in charge had collectively – ethically and lawfully – refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.
Unlike Trump’s Justice Department, the Trump campaign relied on second-rate lawyers who lack the skills to sustain the president’s charade. Following a recent hearing from Rudy Giuliani, Judge Matthew Brann (a Republican) wrote that the campaign was “strained legal arguments without merit and speculative allegations not contained in the operational complaint and not supported by evidence”. Even judges appointed by Mr. Trump have refused to deal with lawyers who cannot master the basic mechanisms of the legal profession.
After four years of bulldozing through institution after institution on the back of qualified lawyers, the Trump agenda hit a wall.
The story of the Trump campaign’s attack on our elections may have been the story of the four-year attack by the Trump administration on our institutions. If the Justice Department attorneys tasked with selling the government’s lies had emptied the ranks early – by holding back our talents and reputation, and demanding the same from our professional colleagues – the work in defense of the policy would be President Trump has been left to the lawyers. Now he represents his campaign. Lawyers like Mr Giuliani should have defended the Muslim ban in court.
Had that happened, the judges would likely have taken down the Trump facade from the start, halted the momentum of his ugliest and most destructive endeavors, and brought in much-needed accountability at the start of his presidency.
Before the 2020 elections, I was haunted by what I didn’t do. In any case, I haven’t pushed back enough. Now, after the 2020 elections, what I’ve done is haunted me. The compromise was not worth it.
By giving a voice to those who are trying to destroy the rule of law and recognizing their efforts with our talents and even our core competencies, we made that destruction possible. Have we done enough good elsewhere to offset the damage we have caused, as a public health official could marginalize the president to help advance vaccine development? No.
Regardless of our intentions, we were complicit. We have together perpetuated an anti-democratic leader by adapting to his attack on reality. We may have been victims of the system, but we were also its instruments. No matter how much we pushed ourselves back from within, we did so as members of a professional class of government attorneys who opened up an attack on our democracy – an attack that almost ended it.
We owe the country our honesty about what we have seen and about what we have seen. We are excused. I’m offering mine here.
And we do our best to restore our democracy and share what we have learned to mobilize and implement reforms – to remind future government lawyers that it is the right way to refuse your colleagues and to be on the same level hold when asked to undermine our democracy.
Lead by example and do everything in our power to ensure this never happens again. If we don’t, it will.
Erica Newland, Attorney at Protect Democracy, worked in the Department of Justice’s legal department from 2016-18.
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