President Trump’s firing of Acting Attorney General Sally Yates came as no surprise: the U.S. Attorney General serves at the President’s pleasure, and nobody could expect the White House to keep an insubordinate employee in office.
But that doesn’t mean Yates was wrong. In fact, government lawyers face tough choices when they believe the government is acting illegally.
Attorneys in private practice have the narrow duty to represent their clients as far as legally possible. But a government lawyer has broader responsibilities—and broader powers—to serve the general public. As Supreme Court Justice George Sutherland wrote, he represents “a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all… As such, he is in a peculiar and very definite sense the servant of the law.”
Take the power of “confessing error.” Government lawyers are empowered to tell appellate courts that even though the government won at trial, it should not have. That’s a effective tool, meant as the Supreme Court said, for preserving “the public trust” where “a miscarriage of justice may result from their remaining silent.”
Ethics rules also treat government lawyers differently from private lawyers. A defense attorney may do what’s necessary to defend his client, but he must still tell courts the truth and make non-frivolous legal arguments. That still leaves plenty of wiggle room, but he cannot do something he knows is wrong. If his client insists on perjury, for instance, he must refuse. Government lawyers have even broader ethical duties: they’re required to “do justice.” Supreme Court Justice Robert Jackson—famous for his role at the Nuremburg trials, where the “just following orders” defense was rejected—explained that this means prosecutors must prioritize “fair play and decency” over winning. “While you are being diligent, strict, and vigorous in law enforcement you can also afford to be just,” he wrote. Even if the government loses a case, “it has really won if justice has been done.”
The importance of government lawyers exercising their own judgement is even greater at the state level, where, unlike the federal system, many attorneys general are independently elected. This came about during the Progressive Era, when many states divided the two offices to prevent governors from manipulating the courts. In these states, there’s no question: the attorney general serves the people and the law, not the government. But that means he must refuse to do things he thinks are unconstitutional—including refusing to defend the constitutionality of laws he thinks invalid.
That can be controversial, as when some state attorneys general refused in recent years to defend bans on same-sex marriage. But state and federal lawyers swear an oath to support the Constitution, not any particular law, and when the two are in conflict, their duty is clear. That doesn’t mean they can just do their own thing—and it’s troubling that in explaining her actions, Yates did not actually say that she thinks the President’s order illegal. Instead, she wrote that she was “not convinced” that it is lawful. That’s not quite the same. If she just thought the order wrongheaded, that’s not a good reason to say no. But if she thought it unlawful, she has an obligation to say so.
Some have argued that Yates should have resigned rather than refuse to defend the order. But there’s nothing wrong with a government official taking a stand and being fired. In some ways, it benefits the public by letting voters see the disagreement at the government’s highest levels.
Others agree that an attorney general must refuse to defend illegal government actions, but claim that a government action isn’t illegal until a court says so. That can’t be right. Courts are often wrong, and each branch of the government has its own duty to abide by the Constitution, without waiting to see what the judiciary says. Courts never declared the Alien and Sedition Acts unconstitutional—but President Jefferson was right not to enforce them.
A more moderate version of this argument is that government lawyers must make every argument short of a frivolous one in defense of the government. But “frivolous” is too lenient a term for this approach to work. A legal position isn’t technically “frivolous” if a lawyer can make a “good faith” argument that existing law should change. That means an attorney general would have to defend a segregation law because he could argue that Brown v. Board of Education should be overruled.
Since every lawyer must ultimately decide for himself what arguments are meritorious, this argument still doesn’t disprove that government lawyers must exercise independent judgment about whether and how to defend any government action. Lawyers aren’t soldiers, charged with doing what they’re told. They’re attorneys—and they should stand for the law