Should I Stay or Should I Go?

In a previous post I wrote about two federal prosecutors who resigned rather than follow instructions from Acting Deputy Attorney General Emil Bove to dismiss federal corruption charges against New York City Mayor Eric Adams without prejudice (thereby providing leverage the Trump Administration could use against Adams to secure his cooperation with the administration’s plans for mass deportations). In a letter to Attorney General Pam Bondi, Assistant U.S. Attorney Danielle Sassoon objected that the instructions would require her to violate core obligations of the role of lawyer, federal government lawyer, and prosecutor:

When I took my oath of office three weeks ago, I vowed to well and faithfully discharge the duties of the office on which I was about to enter. In carrying out that responsibility, I am guided by, among other things, the Principles of Federal Prosecution set forth in the Justice Manual and your recent memoranda instructing attorneys for the Department of Justice to make only good faith arguments and not to use the criminal enforcement authority of the United States to achieve political objectives or other improper aims. . . . [A]s you may know, I clerked for the Honorable J. Harvie Wilkinson III on the U.S. Court of Appeals for the Fourth Circuit, and for Justice Antonin Scalia on the U.S. Supreme Court. Both men instilled in me a sense of duty to contribute to the public good and uphold the rule of law, and a commitment to reasoned and thorough analysis. I have always considered it my obligation to pursue justice impartially, without favor to the wealthy or those who occupy important public office, or harsher treatment for the less powerful.

On April 22, 2025, the New York Times reported that three additional prosecutors in the Southern District of New York resigned rather than ritually abase themselves by “admitting wrongdoing” in connection with the office’s refusal to dismiss the prosecution. The Times reports:

[T]he prosecutors — Celia V. Cohen, Andrew Rohrbach and Derek Wikstrom — said that Todd Blanche, the deputy attorney general, had placed a condition on reinstating them: “that we must express regret and admit some wrongdoing by the office in connection with the refusal to move to dismiss the case.

Cohen and Rohrback were put on administrative leave and escorted out of the building in March, Wilkstrom had previously been put on administrative leave, and another prosecutor, Hagen Scotten, blasted Bove’s actions in a resignation letter, writing:

There is a tradition in public service of resigning in a last-ditch effort to head off a serious mistake. Some will view the mistake you are committing here in the light of their generally negative views of the new Administration. I do not share those views. I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But 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 was never going to be me.

The three prosecutors who refused to admit wrongdoing when there was none made a similar appeal to law, the professional traditions of prosecutors, duties owed by lawyers to the courts, and the oath taken by lawyers to uphold the Constitution and the laws of the United States; these obligations qualify, and may even supersede, the obligation to further the interests of the President:

[A] prosecutor must abide by the oath to uphold the Constitution and laws of the United States and the rules of professional ethics set by the bar and the courts. The Department has long understood that these duties can and should coexist with the need to follow Department policies and orders. This is to the benefit of all: the courts, defendants, and the public, who can have confidence in the good faith and judgment of line prosecutors; the Department, which retains credibility while still receiving zealous advocacy from its lawyers; and the prosecutors themselves, who can stand in court confident that they are ethically carrying out their duties.

Now, the Department has decided that obedience supersedes all else, requiring us to abdicate our legal and ethical obligations in favor of directions from Washington. That is wrong.

This follows the news that the Attorney General first suspended and then fired Erez Reuveni, a DOJ lawyer who admitted in court that Kilmar Abrego Garcia had been deported by El Salvador by mistake, which I wrote about a couple of weeks ago.

Then, as I was working on this post, the news broke that the Transportation Department replaced the SDNY lawyers who had been representing it in litigation over the Trump Administration’s attempt to end congestion pricing in New York City. The lawyers had inadvertently filed an attorney-client privileged research memo exploring alternative theories for opposing the plan. Inadvertent production of confidential documents is on the short list of every litigator’s worst nightmare. Most courts have come around to a middle-ground position as to whether such a mistake waives the attorney-client privilege, and courts also encourage the parties to enter into claw-back agreements that provide for a return of privileged documents (see the Explanatory Note to Fed. R. Evid. 502).

A normal client might be annoyed, but understand that no real harm was done in the long run. But the DOT blasted the lawyers, calling the inadvertent filing “legal malpractice” and insinuating, in Trumpian ALL CAPS, that they had actually done it on purpose:

“Are S.D.N.Y. lawyers on this case incompetent or was this their attempt to RESIST?” a spokeswoman for the department wrote.

All of which raises the question, should an honest, conscientious, ethical lawyer remain in the Justice Department under leadership that refuses to acknowledge obligations under the rules of professional conduct and duties to the court? That question implicates two practices which have deep roots in public ethics – civil disobedience and conscientious objection. Both practices seek to reconcile the law’s claim to command the respect and obedience of its subjects with the conscience of individuals subject to the law and the moral right to challenge unjust laws. In addition to these morally-motivated practices, someone in an official role, like a federal prosecutor, might wonder whether there are prudential reasons to look for another job carrying less risk of serious consequences like professional discipline or being held in contempt by an angry federal judge. In addition to considering civil disobedience or conscientious object, covering one’s own ass may be a good reason to reign, at least from certain roles in the Trump Justice Department.

Civil Disobedience, Conscientious Objection, and CYA

Civil disobedience is an essentially public-facing act, seeking to persuade other members of a political community that the law or legal institutions are acting unjustly. Paradigmatic instances of civil disobedience include lunch counter sit-ins to protest segregation and burning draft cards in opposition to the war in Vietnam.

Lawyers might engage in acts of conscientious objection by resigning in a particularly noisy way, as a way of blowing the whistle on misconduct inside the government. My colleague Mike Dorf points out that if Danielle Sassoon and Hagen Scotten had been concerned only about their own 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.” As I understand the incident, however, Sassoon and Scotten did not disclose their letters to Bove. Perhaps they knew they would eventually be disclosed, but they weren’t really whistleblowers.

This matters, because whistleblowing by lawyers is a violation of two core professional obligation – safeguarding confidential information and loyalty to clients. I wrote about the case of an associate at a law firm that was investigating allegations of sexual harassment by CBS News President Les Moonves. Believing that CBS News was going to sweep evidence of misconduct under the rug, the associate leaked a draft report to a New York Times reporter. Publication of information in the report resulted in the law firm and CBS entering into an eight-figure settlement with people whose private information was disclosed. The lawyer who leaked the report was suspended from practicing law for two years.

Most of the significant contributors to the literature on civil disobedience, including Matin Luther King, Jr., John Rawls, and Joseph Raz, has emphasized that one who engages in civil disobedience must take responsibility for their lawbreaking (although some theorists, like Ronald Dworkin, argue that the state ought to mitigate the punishment of people who engage in civil disobedience). Acceptance of punishment signifies endorsement of the legal system’s legitimacy. Attempting to evade punishment, or engaging in covert acts of resistance, has the form of rebellion or sabotage, not a conscientious, non-violent, public, communicative act intended to draw attention to legal injustice.

If Sassoon and Scotten had disclosed confidential information with the expectation that they would be subject to professional discipline, with the belief that engaging in this act and accepting the resulting punishment was necessary to call attention to a serious injustice, their conduct would count as civil disobedience. I believe, instead, that it was conscientious objection – a subject considered below – but nevertheless courageous and ethically justified.

I do agree with Mike’s further point, however, which is that the resignations of two senior federal prosecutors may have brought about beneficial consequences:

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.

Social psychologists have explained that pluralistic ignorance may lead members of a group to believe that a minority opinion is actually widely shared. Public demonstrations of opposition to injustice can show that the majority is actually on the side of the objectors. It also makes it more difficult for authoritarians to concentrate official power on one target. Journalist James Fallows compares this effect to the followers of Spartacus’s rebellion shouting “I am Spartacus!”, so that the Romans had to deal with the entire crowd.

In the movie Spartacus and the historical episode upon which it was based, all of the rebels end up getting crucified, so maybe this isn’t the best example, but the point remains: Standing up for what one believes is right can embolden others to take the same stand, making it more difficult for abusers of power to pick off isolated opponents. It would be more difficult for Pam Bondi or Emil Bove to put an entire U.S. Attorney’s Office or division of the Justice Department on leave than to impose discipline against a smaller group of lawyers.

Conscientious objection differs from civil disobedience in being an effort to protect one’s own integrity by avoiding complicity in wrongdoing. It is not a public act seeking to draw attention to, and criticism of, abuses of power or legal injustice. The person engaging in conscientious objection may believe that the applicable law is, in fact, unjust. The purpose of objecting, however, is to avoid participating in an act that the objector believes is morally wrongful. The paradigmatic cases here are pacificists who refuse to serve in the military or Jehovah’s Witnesses who refuse to salute the flag.

An example of conscientious objection by a lawyer from the first Trump Administration is Erica Newland, who had begun work in the Office of Legal Counsel during the Obama Administration but carried over into the Trump Administration. As she later wrote in the New York Times, she left the OLC after concluding that she could not ethically continue to work to make Trump’s executive orders more palatable to courts. She conceded that, by narrowing and modifying orders to make them lawful, she also helped make them less harmful. She also acknowledged that she may have been able to do more within the government to push back on Trump’s systematic attacks on democracy and the rule of law. Of course, there was a limit to what any government lawyer could have done to mitigate the harm Trump was doing, which Newland recognized after the January 6 insurrection unfolded:

No matter our intentions, we were complicit. [BW: Technically that’s not correct, a point I will explain below.] We collectively perpetuated an anti-democratic leader by conforming to his assault on reality. We may have been victims of the system, but we were also its instruments. No matter how much any one of us pushed back from within, we did so as members of a professional class of government lawyers who enabled an assault on our democracy – an assault that nearly ended it.

Complicity is something about which philosophers continue to debate. The core of complicity is indirect participation in wrongdoing, but how much participation is necessary to make one complicit? Must one’s participation make a causal difference? In a well-known book (at least among moral philosophers), law professor Christopher Kutz offers the example of American and British bomber crews that took part in the attack on Dresden, Germany, near the end of World War II. Three waves of bombers dropped high-explosive and incendiary bombs on the city, leading to a massive firestorm that killed tens of thousands of people, mostly civilians. Any one bomb, any one plane, any one crewmember made no causal difference whatsoever to that outcome. It was overwhelmingly causally overdetermined, but any given crew member might nevertheless believe that they are responsible, in some sense, for playing a role in the harm. For example, I think no one would have a hard time understanding why a crew member might look back on that event and feel a sense of regret or shame.

Kutz’s example is also meant to illustrate how much wrongdoing in the modern world takes place through collective and institutional structures. Even if the harm is causally overdetermined, one may be accountable for intentionally participating in the wrongdoing of others, including within a complex organizational structure. He writes:

I am accountable for what others do when I intentionally participate in the wrong they do or harm they cause. I am accountable for the harm or wrong we do together, independently of the actual difference I make (p. 122).

Kutz’s approach is part of a larger tendency in modern moral philosophy to focus not on the assessment of consequences but on the intentions of the actor. But I wonder whether it is a bit too expansive, and whether some consideration of causation and outcomes should remain part of the analysis of complicity, particularly in cases of structural injustice. One target of Black Lives Matter protests was Ford Motor Company, for selling cars to police departments. That seems like a bit of a stretch. Surely the police could find ways to be brutal using General Motors cars, or on horseback, or on foot. The philosopher Kwame Anthony Appiah (better known publicly than most moral philosophers because he writes the New York Times’s “Ethicist” column) has written that it might even amount to “moral narcissism” to believe oneself responsible in the absence of any significant causal contribution to a harm (Anthony Appiah, “Racism and Moral Pollution,” in Larry May & Stacey Hoffman, eds., Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics (1991)).

There is also ambiguity in the concept of “participatory intention” that is supposed to do the evaluative work here. The ambiguity comes from, among other things, the multiplicity of descriptions that can be applied to any action (an observation traceable to one of the really difficult and important books in 20th century moral philosophy, Elizabeth Anscombe’s Intention). To take a variation on another example from Kutz’s book (pp. 156-57), imagine an engineer working for a large conglomerated manufacturing company that makes, among other things, doorbell cameras and optical guidance systems for air-to-ground missiles. The engineer is asked to work on a particular gizmo that can be used in either doorbells or missiles. Like most engineers, she enjoys working out complicated technical problems and making things work better. However, she is aware that the company’s optically-guided missiles are currently being employed by a brutal regime against rebels in a civil war. Can she describe her participatory intentions as something like “fiddling around with the design of this gizmo to get it just right”? This description might be in good faith if the engineer had no knowledge of the use of the company’s missiles in the conflict and the function of the gizmo in the missiles. She might have believed, for example, that the gizmos had been intended for use in the doorbell cameras and a different engineer elsewhere in the company had swapped them in as a missile component. On the other hand, she may know about their use in the missiles and harbor serious moral doubts about the company’s actions. In that case her participatory intentions could support an evaluation that she was complicit in the company’s wrongdoing.

For my application of this framework to the public criticism of Taylor Swift taking a transpacific flight on a business jet to watch Travis Kelce play in the Super Bowl, see pp. 948-49 of Wendel, “The New Legal Ethics,” 52 Hofstra L. Rev. 929 (2024). Never let it be said that I don’t talk about the most important moral questions of our time.

Here is a proposal for a rough way to think about participatory intentions in cases of structural injustice and institutional wrongdoing: If an institution is for the most part functioning as intended toward morally justifiable ends, and a participant within the institution has no reason to know about a specific or localized dysfunction that is causing harm, then it is plausible to describe the relevant participatory intentions in terms of the morally justifiable end. One’s own intentions, which are relevant to one’s personal integrity, can be aligned with the morally justifiable ends of the institution. Most of the time, under most presidential administrations, the Justice Department performs the valuable functions of advising the President on the lawfulness of contemplated actions, defending the government’s position in court in good faith (and in compliance with rules of procedure, evidence, and professional conduct), and bringing criminal and civil enforcement actions as needed to respond to attempts to evade responsibility for lawbreaking. A lawyer in an ordinarily functioning Justice Department can therefore plausibly describe her participatory intentions in terms of these rule-of-law values.

In a dysfunctional DOJ, however, it becomes less plausible for a lawyer to assert that her intentions are to further the rule of law or some other morally justifiable end. This leads to the problem described by Erica Newland in the last Trump Administration: Her integrity is threatened by having to go to work and do things that can only be plausibly described in terms that she cannot accept, such as abusing official power, retaliating against political opponents, trying to overturn the results of a fair election or, in the case of this administration, cruelty for its own sake. This is the problem that conscientious objection is intended to address. A lawyer who seeks to preserve her integrity as a decent person may not have the option of describing her actions taken in a professional capacity in terms that avoid complicity in wrongdoing.

Conscientious objection is then an available strategy for extricating herself from acting in ways that violate her personal integrity. There is no claim here that quietly resigning will rally others (although it might if resignations become sufficiently numerous) or call the public’s attention to official abuses. The role of conscientious objection is solely to permit individuals to preserve their own integrity.

Cover your ass: Moving from moral principles to more pragmatic concerns, some lawyers in the DOJ are probably watching these stories and wondering if they’ll be next. I realize there are a great many lawyers in the Department that are doing regular ol’ lawyer things, having nothing to do with Trump’s campaign of retribution, his mass deportation effort, war on higher education, or efforts to bring law firms to heel. This observation matters for the analysis of participatory intentions, for lawyers thinking about leaving for reasons of conscience.

It also matters for lawyers who are merely trying to avoid being thrown into a situation in which they have no choice but to obey a directive from their political superiors or to commit a serious violation of a duty owed to the court, such as the duty of candor under Rule 3.3. A lawyer might foresee that a conflict is inevitable, given the kinds of cases she is working on, the government’s position in similar matters, the questions judges are asking of government lawyers in evidentiary hearings and motions arguments, and the response of high-ranking DOJ officials. Rather than have to make the right decision in the moment, under pressure, the lawyer might decide that a different employer might not force similar choices.

This is a perfectly acceptable reason for leaving. Considering the possibilities of civil disobedience and conscientious objection is not meant to suggest that moral motivation is the only thing that should matter for lawyers. Staying out of trouble is a good thing, too, as is avoiding screaming matches with one’s boss. Even as an ethicist I don’t think everything is about ethics. Sometimes a healthy instinct for self-preservation is something one should listen to.

Long-Term Impact on the DOJ and the President’s Agenda

So far the Trump 2.0 Administration has not been characterized by careful, disciplined, long-term planning. Or if some factions within the Administration are acting strategically, those currents are swamped by the feral side of Trump, who insists on absolute fealty (distinct from loyalty), treats all relationships transactionally, and sees the world in terms of dominance and submission. Conservative columnist Ross Douthat interpreted the directive of Emil Bove that led to Danielle Sassoon’s resignation as an attempt to flush out anyone in the Justice Department who might be a bit wobbly and could present a risk of resigning in the middle of an even more momentous confrontation with the courts:

The assumption inside the Trump administration, one supposes, is that it’s better to cull the potentially disloyal lawyers early, or to get them to prove their allegiance upfront, so that you won’t have to worry about dramatic resignations when you come to some much more important battle. Adams isn’t important in his own right; he’s just a useful test of obedience and discipline.

The obvious downside to this strategy is pushing a lot of legal talent out the door. By now it is clear that the Administration’s strategy is to move aggressively on numerous fronts to assert a breathtakingly strong conception of executive power, while credibly threatening to retaliate against any institution that dares oppose the President. Eventually, however, someone is going to fight back, and they might have the wherewithal to retain really excellent lawyers to represent them, and the Administration will be at a disadvantage if it has run off lawyers with decades of experience with specific areas of law and deep knowledge of federal agency practice. Erez Reuveni, for example, had 15 years of experience litigating immigration cases for the government and was reported to have been sought out to work on the most complex, challenging matters. From the point of view of simple means-ends rationality, purging talented lawyers for the offense of attempting to comply with the rules is, well, insane.

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The description of this Substack says it will occasionally delve into issues from philosophical ethics, not just the law governing lawyers. Other than a couple of passing citations to Rule 1.6 and 3.3, this has been an almost entirely rules-free discussion. I hope it was helpful!

And in case the title of the post got the song in your head, here’s the video.