As the Trump administration’s immigration enforcement agenda gets closer and closer to open ethnic cleansing, federal judges are getting more and more upset—not just about the ethnic cleansing, but about the administration’s repeated refusals to follow court orders. So far, they have taken out their frustrations not on the administration officials who are orchestrating ICE’s worst offenses, but on the government’s lawyers.
Earlier this month, a Justice Department lawyer, facing sharp questioning from a judge about her client’s noncompliance with orders to release immigrants, asked a federal judge to hold her in contempt so she could get some sleep. “This job sucks,” she said, which is not something lawyers usually say in open court unless things are going very badly. Last Wednesday, a federal judge in Minnesota held a government lawyer in civil contempt of court and fined him $500 a day for every day that ICE failed to return a former detainee’s identification documents.
This might feel unfair to any lawyer who has faced a judge’s wrath because of a client’s failures, or, for that matter, anyone who has been chewed out for their boss’s mistakes. But for any lawyer in this position who actually cares about their professional and moral responsibilities, there is a very simple answer: quit.
I do not mean to make light of what quitting involves. Lawyers are relatively well paid, but government lawyers are at the lower end of the scale, and lawyers frequently incur mountains of debt just to get through school. Assistant United States attorney, in particular, is an extremely competitive job. The people who get these positions as federal prosecutors forego jobs in the private sector that would pay more than double their government salary. Quitting isn’t necessarily easy.
But lawyers are also bound by ethical obligations, and despite our less-than-stellar reputation in the general public, my experience is that most lawyers take their ethical responsibilities pretty seriously. We swear to uphold the constitution of the state (or states) where we are licensed to practice, and the United States Constitution. Under each state’s rules of professional conduct, we also owe a duty of loyalty and of confidentiality to each client, and on top of that, a duty of honesty to the court. (We call it “candor,” because we are fancy.) We have a duty to report ethical breaches by other lawyers, and we may not knowingly present false testimony to a court. Prosecutors also have a duty “to seek justice within the bounds of the law,” and all lawyers are barred from assisting their clients in the commission of a crime.
Sometimes, these duties conflict. When I was a public defender, I saw colleagues wrestle with how to withdraw from a case where their client insisted on offering testimony they knew to be false. Ethically, they couldn’t call the client as a witness, but the client (in criminal cases) had an absolute right to testify—and of course, the lawyer couldn’t disclose why they couldn’t call the client to the stand, because that would breach confidentiality. This is the kind of conflict between professional duties that can arise without much warning, forcing lawyers to make hard, nuanced decisions. (I am admitted to practice in two states and have sworn to uphold both of their constitutions. I don’t know what I’d do if Connecticut and Massachusetts went to war.)
But not all conflicts are so complex. We are now a full year into the Trump administration. The conduct of the Department of Homeland Security is no longer unforeseen. If you’re a government lawyer and you think the administration’s approach to immigration enforcement is at odds with your oath to uphold the Constitution, you’ve had some time to polish your résumé, notify your superiors, and get your affairs in order. Even if you are on board with it, once the pace of removals made it impossible for you to do your job, your professional duty to provide adequate representation obliged you to get assistance, take on fewer cases, or, at least, inform your client that you couldn’t keep up.
At this point, there is no longer a moral or ethical excuse to stay on the job. Some have come to this conclusion already: Six lawyers in the Minnesota U.S. attorney’s office resigned in January after the administration pressured them to investigate Renee Good’s widow. At least eight lawyers have left the U.S. attorney’s office in Chicago this year.
And taking a step back from lawyers’ official ethical duties, there’s something else to consider here. There are, broadly speaking, two kinds of public sector lawyer jobs: the kind that place lawyers on the path toward being judges or elected officials, and the kind that don’t. That first category tends to align with defending the coercive power of the state: U.S. attorneys, assistant attorneys general, district attorneys. The second category includes public defenders, legal aid attorneys, the ACLU, and all the other places where the grumpy socialists in law school end up. (Full disclosure: My career involves fifteen years as a public defender and four at a non-profit. I’m one of the grumpy socialists.)
Most of the jobs in both categories are highly competitive. Most pay far less than the private sector. But the jobs in the first category have an important benefit that everyone who takes them understands: They are seen not just as public sector jobs, but public service jobs—honorable endeavors beyond moral reproach, devoted to the greater good. Strangers thank prosecutors for their service as though they were veterans! No stranger ever thanked me for my service as a public defender.
And that’s fine. Public service is good. But when someone signs up for a career that shrouds them in selfless patriotism—and puts them in a position to win way more cases than they lose—they must be ready to lean in to the selfless patriotism when the going gets tough.
So don’t feel sorry for the government lawyers catching federal judges’ wrath. Don’t vote for them when they launch their political careers. Don’t buy them a drink, and definitely don’t thank them for their service. Justice Department lawyers should have quit already. They definitely should quit now. If they do not, they are complicit.
