On honor.

• Author: Silberman, Laurence H.
• Position: The Federalist Society National Lawyers Convention - 2007: American Exceptionalism

Reflecting upon many years of government service, I am struck by the disappearance of a word that once was the coin of the realm: "honor." It was once the concept of honor against which men and women measured their governmental behavior. It restrained undesirable actions. But I ask you--when was the last time you heard of any government or ex-government official being described as dishonorable? The reasons, I suspect, are quite complicated. One cause may well be society's increased efforts to criminalize behavior. It has almost gotten to the point where people think if their behavior is legal, it cannot be blameworthy. And when, after our efforts to drive "honor" from our common lexicon, we find that a public official has betrayed our trust, we are surprised. C. S. Lewis put it starkly in his The Abolition of Man: "We laugh at honour and are shocked to find traitors in our midst." (1)

Government is hardly unique; the concept of honor appears to have atrophied throughout our society. But I wish to focus on government service. I think the demands of honor have some special application to such service. I will discuss both behavior while in office and the proper manner to leave government service, as well as the behavior of political opposition--particularly as it relates to the conduct of our nation's foreign policy.

First, let me turn to the behavior of political appointees in the executive branch (I exclude the independent regulatory agencies). It should be obvious that people honored by presidential appointment, as well as those appointed by a presidential appointee, owe a degree of loyalty to the President. I say "a degree," because every political appointee should be prepared to oppose any policy he or she believes is immoral or illegal--even at the cost of one's career. Such appointees should have, metaphorically speaking, their resignation letters in pocket in case they are ever confronted with a question of conscience. Whether one should publicly describe the circumstances of his or her departure depends entirely on how serious a national issue is involved.

But I put it to you: it is flatly dishonorable for a political appointee anonymously to leak to the press his or her discomfort with administration policies. If those policies offend you, you should resign. The problem is that all the political incentives are to the contrary. If, for instance, you can position yourself through judicious leaks to a more popular side of a particular President--at least more popular with the dominant Washington currents--you will rapidly gain a favorable reputation. And those in the administration whom you oppose--including perhaps the President himself--will suffer accordingly. Presidents have continually been frustrated by this process, but I have always thought that they are not powerless to control leaking, even without using some of the draconian techniques Lyndon Johnson is said to have employed. Presidents can usually deduce where a leak originates by asking who stands to benefit. Then, the perpetrator can be discouraged and the targets rewarded as necessary. Granted, it is difficult--otherwise Presidents would have been more effective--but I don't think it is impossible.

It follows that those who engage in this leaking practice are not condemned by the press. If the cliche can be forgiven, the press doesn't bite the hand that feeds it. And, with the decline of the dictates of honor in our society that might otherwise restrict political appointees from unprincipled leaking, we see more and more of it. There are, of course, some political appointees who are still restrained by traditional notions of honor. They think it manifestly wrong to attack fellow appointees anonymously or to criticize the President on the sly. They are at a distinct disadvantage. They are the ones who, all too often, develop an unfavorable reputation--sometimes quite inconsistent with their real value. But they also know, as Sophocles once wrote, that it is better to fail with honor than to succeed by fraud. (2)

What about career civil servants? To be sure, they do not owe political allegiance to the Presidents they serve. But is it not a fundamental premise of our democracy that the winners of elections, and their appointees, are owed a measure of loyalty so that the business of government can go on? To be sure, in our unique democracy which splits the executive and legislative authority, Congress exerts a gravitational pull on the civil service. Some years ago a delegation of British parliamentarians asked me why our executive branch has so many political appointees, whereas Britain manages with only a couple in each department. I explained that in Britain, the fusion of executive and legislative authority...