Response: a Practitioner’s Perspective on Complicity and Lesser Evils

Response: A Practitioner’s Perspective on

Complicity and Lesser Evils

ERICA NEWLAND*

TABLE OF CONTENTS

I. CASE STUDY ON “LESSER-EVILISM” AT THE DEPARTMENT OF

JUSTICE: 2016–2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 682

A. 2016: A DUTY TO STAY?. . . . . . . . . . . . . . . . . . . . . . . . . . . 682

B. 2017–2018: PROFESSOR LUBAN’S FRAMEWORK IN ACTION 684

C. FALL 2018: A DUTY TO LEAVE? . . . . . . . . . . . . . . . . . . . . . 687

II. SUPPLEMENTING PROFESSOR LUBAN’S FRAMEWORK. . . . . . . . 687

A. DID THE GOVERNMENT OFFICIAL WHO CHOSE TO STAY

LEAVE MUCH PERSONAL SPIELRAUM UNUSED? . . . . . . . . 688

B. DID THE GOVERNMENT OFFICIAL’S DECISION TO STAY

MAKE SPIELRAUM FOR THE REGIME? . . . . . . . . . . . . . . . . 689

III. CLOSING THOUGHTS: HELPING THOSE ON THE INSIDE CHOOSE

THE MORAL PATH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 691

I come to Professor David Luban’s incisive Complicity and Lesser Evils not as

a historian, philosopher, legal scholar, or professional ethicist, but rather as a

practitioner.

As someone whose tenure as a career attorney at the U.S. Department of

Justice (DOJ) covered the f‌irst two years of the Trump administration, I read

Professor Luban’s article with unsettling, if not surprising, recognition. Building

on Hannah Arendt’s work, Professor Luban perceptively captures the challenges

my colleagues and I faced when deciding whether to stay and work within a terri-

ble regime or to “just go home.”

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* Counsel at Protect Democracy, former Attorney-Adviser at the Off‌ice of Legal Counsel from 2016–2018;

Yale Law School. © 2021, Erica Newland.

1. David Luban, Complicity and Lesser Evils: A Tale of Two Lawyers, 34 GEO. J. LEGAL ETHICS [insert

page number after we receive printer proofs] (2021). It should go without saying that the Trump administration

was not at all equivalent to the regime that Luban discusses. The questions that Luban poses, however, are uni-

versal, and the history he elucidates—like all history—is important to learn from.

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