Serving a Lawless President

• Publication year: 2021

Serving a Lawless President

William R. Casto

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Serving a Lawless President

Man is nothing else but what he makes of himself.

Jean-Paul Sartre

by William R. Casto^*

I. Introduction

What does an Attorney General do when confronted with a lawless President? At first glance, the answer is easy,¹ but on second thought, a realistic answer is complicated. The answer is complicated because the phrase "lawless president" is not necessarily pejorative. In fact, western leaders have always exercised a prerogative power to throw the law overboard when they see fit.² Some of our greatest Presidents have followed this path. Thomas Jefferson did,³ as did Abraham Lincoln⁴ and Franklin Roosevelt.⁵

So what does the President's Attorney General do? The law and principles of professional responsibility offer a clear answer to the question whether an attorney should conspire with the President to act unlawfully. The short and simple answer is "no."⁶ If we seek more nuanced guidance than this procrustean solution, we must look beyond

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the law and beyond the principles of professional responsibility. A lawless official must seek guidance in extra-legal—hopefully moral—principles.

This existentialist essay⁷ ignores the question of what an attorney should do. To be sure, one could ruminate on the issue,⁸ but that is not the path here taken. Instead, the essay describes how one capable and honorable Attorney General actually dealt with the problem. The exploration concentrates on the "is" (was) and not the "ought." This approach accords with the wisdom of an experienced and thoughtful observer of public life: "It seems better to me to go straight to the actual truth of things rather than to dwell in dreams."⁹

In thinking about an attorney's service to a lawless President, a clear distinction must be drawn between advising the President about the law and assisting the President in implementing a program. A number of serious thinkers have carefully analyzed the role of government attorneys in facilitating government lawlessness, but their attention has been focused on the attorneys' advice rather than participation in a criminal conspiracy.¹⁰ There are clear and easily understood principles regarding legal advice that the attorney may properly give and so long as the advice is reasonably accurate, there should be no problem.¹¹ In contrast to legal advice, an attorney who helps implement an illegal program is herself lawless—she has become her President's co-conspirator. She is in the clutches of what Michael Walzer has described as "The Problem of Dirty Hands."¹²

Although this existentialist essay eschews the issue of how an Attorney General should act, the purpose is not to provide a free moral pass. An attorney who assists the President to implement an illegal project is morally complicit in the President's action and may be subject to moral condemnation. But it is complicated. Sometimes the action,

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though illegal, is the right thing to do. For example, in 1940 Great Britain stood alone against the Nazi Colossus, and President Franklin Roosevelt, with his Attorney General's assistance, illegally sold 50 obsolescent destroyers to the British.¹³ The President and his Attorney General conspired to violate the law, but should they be morally condemned? Surely, the answer is no.

How does a particular Attorney General determine whether to facilitate Presidential lawlessness? Stuart Hampshire has persuasively argued that this difficult question cannot be answered through rational analysis.¹⁴ To be sure, there are a number of factors relevant to the question. Respect for the rule of law is at the head of the list and in almost all cases, will influence a President and Attorney General to act lawfully. In a small number of situations, however, other considerations may outweigh respect for the law.¹⁵ Weighing and balancing these considerations is not a rational process.

Based upon decades of experience in government, Lieutenant General Charles Pede¹⁶ has provided advice that should make sense to practicing lawyers. He asks, "[H]ow do you know what the right thing is?"¹⁷ He replies, "[Y]ou trust your gut. You talk with your trusted friend, perhaps you pray, you let things cook' for a while, but deep down, trust me, you'll know. It wells up in your gut and your gut tells you."¹⁸ His advice based upon a lifetime of professional experience is a practical application of Hampshire's persuasive theoretical analysis. In giving this advice, General Pede was not addressing the difficult issue of conspiring to commit a crime.

Robert H. Jackson was the Attorney General who conspired to assist the British in their hour of desperate need, and his career illustrates approaches or tactics for dealing with a lawless President.¹⁹ He is almost universally respected as a capable and honorable public

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servant.²⁰ More than once, Jackson had to deal with President Roosevelt's desire to cast the law aside.

The present essay draws upon H.L.A. Hart's The Concept of Law to develop a model for thinking about Jackson's service to his President.²¹ Then the essay notes a few specific historical occasions in which western leaders have acted lawlessly.²² After that, we turn to details of Jackson's service as a praxis for understanding the plight of an Attorney General serving a lawless President. Finally, the essay concludes by emphasizing the value and importance of passing moral judgment on the actions of an Attorney General.

II. The Concept of Law

A little over fifty years ago, H.L.A. Hart wrote "the most influential book in legal philosophy ever written in English."²³ In The Concept of Law,²⁴ Hart, who was a legal positivist, constructed a general theory of what laws are. In particular and for the purpose of the present essay, he believed that any legal system had to have rules of recognition that are used to determine whether a particular rule is or is not a valid law. In the United States, these rules of recognition are laid out in our state and federal Constitutions. Hart believed that there is no necessary relationship between law and morality. He did recognize, however, that as a matter of local policy, some countries might choose to incorporate moral requirements in their rules of recognition.²⁵ A law that is duly created pursuant to the applicable rules of recognition is a valid law regardless of its morality. Rules that are "morally iniquitous" nevertheless are laws so long as they meet the test of a particular country's rules of recognition.²⁶

Because Hart developed his concept in the aftermath of World War II, he inevitably had to consider the monstrosity of Nazi Germany. True to his concept, he insisted that the Nazi legal grotesqueries clearly were laws because they came from law makers constitutionally empowered to make them. They satisfied Germany's rules of recognition. At the same time, he believed that laws need not be followed merely because they

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are laws. In his view, "[W]e should say, '[t]his is law; but it is too iniquitous to be applied or obeyed.'"²⁷ Some argued that grossly immoral laws are not laws at all, but Hart rejected this approach.²⁸ Instead of including morality in his general definition of law, he believed that separating the two concepts allowed for a more careful analysis of the problem of iniquitous laws. For example, how should we treat someone who has complied with, taken advantage of, or relied upon an evil law? They may well have acted immorally, but should we retroactively punish them for an action that was lawful at the time that it was taken?²⁹ In Hart's mind, retroactive—ex post facto—punishment for some of the Nazis' outrages was appropriate.³⁰

Hart was also concerned with officials that are called upon to enforce laws. He specifically addressed "[T]he unfortunate official . . . who was called on to apply ['morally iniquitous' laws]."³¹ The question for the unfortunate official was whether the laws are too iniquitous to be applied. Hart clearly rejected the notion that a law is an absolute mandate that an official must follow at all cost. In his mind, "[T]here is something outside the official system, by reference to which in the last resort the individual must solve his problems of obedience [to law]."³²

A. Presidential Prerogative

Hart and others have addressed the problem of laws that are iniquitous in and of themselves.³³ His concept, however, needs further elaboration. Suppose that, unlike the Nazi laws, a particular law is innocuous on its face and has been enacted to further a reasonable purpose. Suppose also that this law forbids particular official action that is necessary to avert a calamitous event. In such a case, many conscientious western leaders have believed—to use Hart's words—that

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"there is something outside the official system, by reference to which in the last resort,"³⁴ they must turn to decide whether to obey the law. Dilemmas like these are the stuff of presidential prerogative.

The idea that a leader sometimes should act lawlessly is centuries old. The easiest example is an existential crisis. When a nation's very existence is at stake, self-preservation easily trumps legal technicalities. Niccolo Machiavelli took Piero Soderini, gonfalonier of the Republic of Florence, to task for Soderini's failed defense of their Republic. When the enemy was almost at the gates, Soderini refused to violate the law and lost the Republic. Machiavelli believed that one should never allow an evil to run out of respect for the law, especially when the law itself might easily be destroyed by the evil.³⁵ To be clear, Machiavelli was not saying that in an emergency, a leader might lawfully set aside applicable laws. Rather, he and others believed that in some situations, a leader should act unlawfully.

At the beginning of our Civil War, Abraham Lincoln followed the path that Machiavelli had marked. Congress was not in session and Lincoln had to act. He did so...