Because They Are Lawyers First and Foremost: Ethics Rules and Other Strategies to Protect the Justice Department from a Faithless President

• Publication year: 2022

Because They Are Lawyers First and Foremost: Ethics Rules and Other Strategies to Protect the Justice Department from a Faithless President

Stephen Gillers

Because They Are Lawyers First and Foremost: Ethics Rules and Other Strategies to Protect the Justice Department from a Faithless President

Cover Page Footnote

Elihu Root Professor of Law (Emeritus), New York University School of Law. I would like to thank Professor Barbara S. Gillers for her meticulous readings of earlier drafts of this Article and especially for her focus not only on the words and sentences but also the overall arguments. I also thank the D'Agostino/Greenberg Fund for support that allowed time for research and writing.

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BECAUSE THEY ARE LAWYERS FIRST AND FOREMOST: ETHICS RULES AND OTHER STRATEGIES TO PROTECT THE JUSTICE DEPARTMENT FROM A FAITHLESS PRESIDENT

Stephen Gillers^*

During the Trump presidency, Americans were reminded that the nation relies on norms or custom—not laws alone—to protect the Department of Justice and the rule of law from improper political interference. The Justice Department is an agency within the Executive Branch and the Supreme Court has told us that the executive power—"all of it"—resides in the President alone, implying that the President can use the Department anyway he wishes limited only by the Constitution and by laws that do not violate separation of powers principles. Which laws are those? This Article concludes that Congress can do only a little to constrain executive power but enough to prevent some of the worst abuses.

Another check on the President's executive power is the third branch of government—the judiciary. A proper exercise of judicial power will not violate separation of powers principles even if it prevents the President from acting as he may wish. This is obvious, of course, for decisions in cases within a court's jurisdiction, but courts do more than decide cases. As relevant here, they also write professional conduct (or ethics) rules for lawyers whom they license or who appear before them. Authority to do so is an exercise of their inherent power. Those rules govern all lawyers including lawyers at the Department of Justice. And the rules are not limited to the conduct of lawyers who go to court. They apply whenever a lawyer represents a client. Justice Department lawyers must refuse to

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follow a President's instructions that do not faithfully execute the laws or if doing so would otherwise violate a court rule.

In a clash between the executive and the judiciary—where a federal or state court rule imposes a duty that may interfere with a goal the President wishes to accomplish—who wins? This Article argues that the judiciary wins. Its victory is further assured because the court's authority to require obedience to its ethics rules does not rely on inherent judicial power alone, although that would suffice. The judicial authority has also been endorsed in congressional legislation. This Article analyzes certain provisions in the Model Rules of the American Bar Association and the professional conduct rules of the District of Columbia Court of Appeals (which govern many Justice Department lawyers, including the Attorney General and inferior officers who work in the District) and explains how each rule may be a check on executive power.

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TABLE OF CONTENTS

I. INTRODUCTION..................................................................167

II. LESSONS FROM THE STATES............................................. 175

III. THE APPOINTMENTS CLAUSE, THE TAKE CARE CLAUSE, AND THE EXECUTIVE POWER.................................................... 177

IV. CONGRESS CAN IMPOSE QUALIFICATIONS AND CONDITIONS FOR THE APPOINTMENT OF PRINCIPAL AND INFERIOR OFFICERS.......................................................................... 192

V. THE PROFESSIONAL CONDUCT RULES THAT GOVERN FEDERAL LAWYERS...........................................................198

VI. WHAT THE MODEL RULES AND WASHINGTON, D.C. RULES NOW SAY ABOUT GOVERNMENT LAWYERS.......................201

A. THE MODEL RULES..................................................202
B. THE WASHINGTON, D.C. RULES OF PROFESSIONAL CONDUCT...............................................................204

VII. HOW PROFESSIONAL CONDUCT RULES CAN PROTECT JUSTICE DEPARTMENT LAWYERS FROM A FAITHLESS PRESIDENT.......................................................................205

A. RULE 1.2(A)............................................................207
B. RULE 1.2(D)............................................................213
C. RULE 1.6(B)............................................................214

1. How Rule 1.6(b) Can or Cannot Empower Justice Department Lawyers to Resist Improper Political Interference ....................................................... 215
2. The Related Issue of the Attorney-Client Privilege for Communications Between Executive Branch Officers or Employees and Executive Branch Lawyers.............................................................215

D. RULE 1.13...............................................................217

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1. How Rule 1.13 Can or Cannot Empower Justice Department Lawyers to Resist Improper Political Interference.......................................................218
2. The Interplay Between Rule 1.13 and the Take Care Clause......................................................220

E. RULE 1.16...............................................................224
F. RULE 3.3.................................................................225
G. RULE 3.8(A) ...........................................................227
H. RULE 5.1................................................................228
I. RULE 8.3(A).............................................................229
J. RULE 8.4(C) AND (D)................................................230

VIII. CONCLUSION ................................................................ 231

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I. INTRODUCTION

"[W]hen the President does it, that means that it is not illegal."¹

"I have absolute right to do what I want to do with the Justice Department."²

Imagine that,³ after the President appeared to have lost his reelection bid but before the electoral votes were counted in Congress, as the law requires, he instructed the Justice Department to file declaratory and injunctive actions against four states where he lost, but where the popular vote was close. If those states' electoral votes were switched to the President or not counted, or even if their results were put in doubt while the actions proceeded, the Vice President, who presides at the electoral vote count, would be able to declare the President to have won the election. At the President's request, an election law lawyer gave the President a legal memorandum that supported the President's position. The President gave the memorandum to the Attorney General, who disagreed with it. The President instructed the Attorney General to

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file the actions and rely on the memorandum's analysis and whatever additional research supported the President's position. When the Attorney General refused, the President reminded him that the Department of Justice was part of the Executive Branch of government and worked for him. The President quoted a provision of the United States Code, which the election lawyer had given him: "The Department of Justice is an executive department of the United States at the seat of Government."⁴ The President then quoted Chief Justice John Roberts's 2020 opinion in Seila Law LLC v. Consumer Financial Protection Bureau⁵ : "Under our Constitution, the 'executive Power'—all of it—is 'vested in a President,'"⁶ "All of it," the President emphasized. "You work for me, and I can fire you."

"You can fire me," the Attorney General replied, "but the lawyers here don't work for you. We work for the United States by helping you faithfully execute the laws. We can't do what you ask because it is not the faithful execution of the laws, and because we are lawyers first and foremost."

***

An interpretation of the Constitution that purports to give the President total or near total power over the work of the Executive Branch including the Department of Justice was not inevitable. It rests on a perceived relationship between two clauses in Article II of the Constitution, which creates the presidency. Nearly a century ago, in Myers v. United States, the Supreme Court rejected a congressional effort to give an Executive Branch officer protection against removal, citing the Appointments and the Take Care Clauses of Article II.⁷ Now, the current Court has doubled down. "Under our Constitution, the 'executive Power'—all of it—is 'vested in a President,' who must 'take Care that the Laws be faithfully executed,'"⁸ Chief Justice Roberts wrote in explaining why the

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President could remove the Director of the Consumer Financial Protection Bureau (CFPB) before his term expired and without the showing of "cause" that the legislation creating the position required.⁹ Under the Appointments Clause¹⁰ and the Vesting Clause,¹¹ it must be thus, Roberts told us, so that the President could fulfill his constitutional duty under the Take Care Clause.¹² The President is elected; executive department officers and employees are not.¹³ There are, Roberts seemed to imply, no checks and balances within the Executive Branch, a perspective that has received academic attention and concern.¹⁴ So viewed, the President holds all the cards within the Executive Branch.¹⁵ Or, as President George W. Bush put it, anticipating Roberts by fourteen years, one

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person had to be the "decider" and that person was he.¹⁶ The "buck" stopped at the Oval.¹⁷

Roberts was unequivocal. He cited Myers, among other decisions, that did not speak quite so absolutely ("all of it") and could be read less so. In fact, cases Roberts cited have impressive dissenters, including...