November 22, 2016
At OPIA, we know that a change in administration in Washington can create uncertainty and questions in students and alumni considering interning or working in federal government and in alumni already in federal service. As the next presidential transition approaches, we are hearing questions about what it will mean for federal legal internships and careers. As always, we in OPIA are trying to both advise students and alumni wisely and to support them in whatever choices they ultimately make. We have collected the reflections of several alumni who are (or were) federal lawyers, all of whom either experienced, or are about to experience, political transitions themselves. We hope that these concrete role models of attorneys of all political persuasions who have navigated political change will be helpful as current students and alumni chart their own courses.
We have also begun to compile a list of essays discussing some of the challenges facing lawyers and law students right now as they try to decide whether to seek, accept, or keep jobs in government service during the coming administration. At the end of this post, we have included a sampling of those pieces; if you come across others that are helpful, please feel free to share them with OPIA.
Click on the headers for each alumni’s insight
Glenn Cohen ’03, Professor, Harvard Law School (Previously at DOJ, Civil Division, Appellate Staff)
The first and most important distinction is between the so-called “front” and “back” office. The front office is largely political appointees and totally turns over when the administration does. In most, but not all, of the DOJ, most of the lawyers are “back office” people. They are the civil servants who really run the department. In my old office, the average length of service was about 17 years. The folks there saw Presidents come and Presidents go but their jobs were largely the same. I would say it is a 90/10 rule. 90% of the cases and the arguments my division made defending the constitutionality of various acts of Congress and executive actions were the same whoever was president. 10% of the cases were different, more overtly political — for example, when a change in administration and some internal pressure within the executive led the federal government to stop defending the Defense of Marriage Act and argue in favor of a constitutional right to gay marriage. The nice thing in my department was that, of the long-standing career folks, some leaned left and some leaned right, and no one worked on cases they were not comfortable with. So, the 10% swing in positions/case docket was easily accounted for in person power.
There are other parts of the DOJ (OLP, OLC) that are more openly political where things change more. And in some eras — the Civil Rights Division in the Bush II era for example — even the job of a career attorney may change significantly. But I think there is a healthy respect from the front office for the back office, and a belief that there ought to be continuity in the government’s position. In short, I would say that for most DOJ offices most presidential transitions are not that important as to the day-to-day work.
An alum who is currently working in national security
Serving under a president you agree with is easy. Standing up for the rule of law and the principles that make America such a great experiment in self-governance is paramount whether easy or hard.
The most meaningful lesson I ever learned at HLS came in Professor Klarman’s Constitutional History class. It went something like this: With the benefit of hindsight, we tend to assume that the greatness and success of America was predetermined. That it had to go this way. That’s not actually the case; rather, it was a series of choices made by citizens and institutions, some well-known — Lincoln, the Supreme Court in the 50s — and some not, to continually fight for a freer, fairer, and stronger America.
These positions are going to be filled. It’s ultimately a personal decision but I’d say to students: if you don’t do it, then think about who will. I’d also encourage everyone to read this piece by a Heyman Fellow: The Duty To Serve in Trump’s America?
Jonathan Skrmetti ’04, Butler Snow LLP (Previously at DOJ, Civil Rights Division, Criminal Section)
I’m out now, but I was in the Civil Rights Division’s Criminal Section at the Department of Justice for the last transition. My day-to-day work was essentially the same through the transition. There were some marginal changes in the rigor required of memos to get approval to take a case to grand jury, and in the scrutiny applied to charges reliant on Commerce Clause jurisdiction, but these were at most minor differences and the day-to-day work remained constant. There was some reshuffling of supervisors but no significant breaks in continuity.
There was effectively no change in my work due to changing political priorities. When 18 USC 249 was enacted, criminalizing violence based on sexual orientation, there was a strong emphasis on identifying cases where the new statute might be applied. There was a slightly reduced focus on constitutional jurisdictional issues, too. But, these changes had minimal impact.
I moved from the Civil Rights Division to the US Attorney’s Office in Memphis before leaving for private practice, and when I applied to firms there was never any discussion of politics in my prior work. They were interested in my prosecutorial experience, and my impression was that every place I applied viewed it as nonpartisan government service.
Sarah Harrington ’99, DOJ, Office of the Solicitor General (Previously DOJ, Civil Rights Division, Appellate Section)
I joined the Department of Justice as a lawyer in September 2000, so this will be my third transition of power from one party to the other. When most people think about who runs the Executive Branch, they think about the President and his (maybe someday her) cabinet. But, the Executive Branch cannot function without civil servants – and, although the title “civil servant” may not be the most glamorous title you’ve ever heard, government service is a noble calling. When I stand up to argue a case in the United States Supreme Court, I represent the United States – the United States! It is even more awesome than it sounds. So, as you approach this transition, first take a step back to think about the honor, the privilege, and the responsibility that comes with being a lawyer for your country. After you’ve done that, my advice is to wait and see what happens. You may embrace the idea of the new Administration; you may recoil from it. But the work of the United States must go on. It will go on. When you think about whether you want to continue to do it, first, give the new regime a chance to settle in, and then, focus on the work. If you find yourself doing work that you can be proud of, work that helps you develop into a better lawyer, then keep on doing that work. You can respect your colleagues and supervisors without agreeing with everything they believe. If they respect you and the work of the office, consider helping them and the office produce the best possible work. It is vital for the country that most of the people who run the Executive Branch do so in service of the country’s best interests, regardless of the party in charge. You can always find a new job if you find yourself either doing work you do not feel proud of or working with people who do not treat you well. But give it a chance.
An alum who is currently an AUSA
I worked at DOJ in the Criminal Division’s Computer Crime and Intellectual Property Section for the last two years of the Bush Administration. I moved to the US Attorney’s Office shortly before President Obama was elected, and thus served under the Bush-appointed US Attorney for about 6 months, followed by an Acting US Attorney, an Obama-appointed US Attorney who has served most of this administration. So, I never really saw the transition at Main Justice and was relatively new as an AUSA when we transitioned.
As an AUSA, the substance of my day-to-day work did not change at all. Nor was there a discernible shift in the types of cases we accepted for prosecution or how we prosecuted them. New political priorities have affected our work in some ways over the course of the Obama administration. Attorney General Holder gave prosecutors somewhat more flexibility in charging decisions than the previous administration had, but, in reality, I don’t think this actually changed day-to-day practice much. The biggest change has probably stemmed from the “Smart on Crime” policy that has instructed AUSAs not to charge drug cases in a way that triggers mandatory minimum sentences in certain situations (and has encouraged the filing of clemency petitions, which create some additional work to respond to). I suspect some of these policies may change back under the new administration.
The truth is that what affects the actual work-life of an AUSA vastly more than the politics of the President, Attorney General, or their party is the personality and management style of the U.S. Attorney — the person who directly manages their office. I have had the good fortune to serve under two US Attorneys (and an Acting) who valued the people who worked for them and believed in doing Justice above all. Neither party has a monopoly on such people (nor on people who are conversely harsh, self-aggrandizing, or otherwise unpleasant bosses). AUSAs may be particularly insulated from political winds more so than other government lawyers (and my hope is that that will continue). But, as unhelpful as this may be in guiding students making decisions on whether to pursue federal service, the quality of their work-life will depend greatly on the people with and for whom they directly work, which is much harder to gauge in generality.
Richard Lazarus ’79, Professor, Harvard Law School (Previously at DOJ as an environmental lawyer and Assistant to the Solicitor General)
I was at DOJ when Reagan won in 1980. I considered leaving but decided to stay, and it was one of the best personal and professional decisions I have ever made. There are very good reasons to stay. The career attorneys play a truly critical function. That is why they are career. At the Justice Department, only a very small fraction of the attorneys there are political appointees. It would be a huge mistake to treat those positions as though they were instead “political” by declining to work in any Administration in which the President is someone for whom you did not vote. Career attorneys in the Department of Justice in particular play a critical, disciplining role in steadying the ship and staying the course in otherwise controversial political times. That is why it is in many respects more important than ever that outstanding lawyers who understand and appreciate the statutes a federal agency is charged with administering or the Department of Justice is responsible for enforcing and defending remain in the government. The election of a President does not itself change the US Code and the Code of Federal Regulations or the responsibility and bounds supplied by law and careful legal reasoning. During my own years at the Justice Department, first in the Environment Division and then in the Solicitor General’s Office, during the Reagan Administration, I had many fabulous colleagues, some of whom shared the politics of the Administration and many of whom did not. It was then that I first appreciated the necessity for disciplined, legal reasoning, and the central role career lawyers can and do play in the federal government.
Greg Marchand ’99, Government Accountability Office (Previously served as Army JAG and Army Reservist)
I have experienced two presidential transitions during my time in government. In 2000-2001, I was a military attorney for the Army. In 2008-2009, I was a civil service attorney for the Government Accountability Office (GAO), where I remain today. In neither case did I experience any noticeable substantive change in my day-to-day work. GAO, of course, is an independent, nonpartisan legislative branch agency, and therefore is not directly impacted by the wholesale turnover of executive branch appointees. To the extent we experience changes with a new administration, it is because new executive branch priorities will eventually lead to new findings and recommendations to improve federal programs and activities; in addition, new officials may handle cooperation with GAO differently, with respect to things like respecting GAO’s statutory right of access to agency records. Importantly, however, GAO maintains continuity through legislative and executive branch political transition because GAO employees must remain objective and nonpartisan in our support to Congress. We are insulated by virtue of having only one appointee, the Comptroller General, who serves a 15-year term. In addition, our Congressional Protocols establish ground rules for how we interact with Congress to ensure we support both parties, regardless of majority or minority status. Ultimately, as part of our mission to improve the performance of the federal government, GAO provides extensive resources to incoming leadership during times of transition to ensure that congressional and executive branch officials have access to the information they need to prioritize issues and make better decisions. These resources and our recommendations – whether about the nation’s fiscal condition, ability to manage climate-change risks, or any one of hundreds of other issues – are based on facts, evidence, and analysis, not partisan prerogatives.
An alum who has worked in at least 5 different positions in executive agencies and on Capitol Hill
Most jobs in government are really not all that partisan or political, especially at the entry levels, so the effects of transitions are not as great as people expect they might be. But, let me try to add some points which others may not have made:
1) Transitions are common. The big transition when the executive branch changes parties gets all the attention, but changes in Congress can have just as much effect on budgets, appointees, and priorities across the whole government. In the past ten years, this is really the fourth major transition. 2006 was from full Republican control to Democratic control of Congress, 2008 to Democratic control of everything, 2010 to Republican control of Congress, and now 2016 back to full Republican control.
Each of these transitions had pretty significant impacts on the macro level on things like political appointees and funding levels, but did they really have dramatic impacts on government lawyers who were just doing their regular job? Not that I’ve seen. If you work in government, expect to deal with transitions.
2) Abrupt change is unlikely. Change in the government is like a slow moving train. Even if a new Administration wants to put it on a new track, there are all sorts of levers that need to be pulled before that happens. Once the train does start moving, if you don’t like the track it is on you may need to get out of the way or get run over. But, it moves so slowly you will probably have time and opportunity to do that.
An alum who worked in DOJ’s Civil Rights Division
I arrived at DOJ as a Honors Program Attorney mid-way through the Bush administration purge of the Civil Rights Division. The mood in the office to which I was assigned was depressed (not unlike the mood in many of our schools and offices during the last week). The most senior attorneys were just biding their time until retirement. The mid-level attorneys were trying to hang on, but they were not enthusiastic about their work. And, the junior attorneys were fleeing. The honors attorney who arrived the year before I did left shortly after my arrival, after just over a year. I lasted seven months. I wasn’t getting the mentoring I needed as a baby lawyer. And, the case I spent most of that time building was dead on arrival in the AG’s office. That was the crux of the issue: we couldn’t pursue our cases. I’ve seen a similar dynamic play out in the AG’s office in my very red state since a new AG took office two years ago. The career attorneys are fleeing as their cases are settled or withdrawn. You can’t fight with your hands tied behind your back. I no longer practice law (when I left, I really left). But, I think the places to fight during the next two-plus years are the ACLU and other advocacy organizations, law school clinics, public defenders offices, legal aid offices.
Christine Lee Dolorme ’00, Attorney Advisor at the FTC (previously at DOJ’s Antitrust Division)
I was a line attorney in the FTC’s Bureau of Consumer Protection during the 2008-09 transition. I worked on false advertising cases, primarily relating to health claims for dietary supplements. There was literally zero change in my daily life due to the administration change. In my personal experience at an independent agency run by a Commission – where I have worked 7 years as a line attorney and 5 years as an advisor to a Commissioner – staff attorneys will often see changes in priorities when management changes within the agency (not always during a presidential election year), such as when an independent agency gets a new chairperson, or new senior staff members. Sometimes Congress requires us to write a rule or a report based on whatever they feel like asking for at the moment. Even events like the danger of sequestration have a concrete effect on everyday work and agency priorities. My main point is that government attorneys will see changes in work due to all sorts of circumstances, and an administration change is only one of them. Of course, I have had the luxury of working at an agency with a strong tradition of bipartisan cooperation and a mission that I think is supported by both sides of the aisle. This certainly is not true of all agencies and all missions. And, certainly at the higher levels of an agency, where you are working directly for political appointees, you are going to see more change than line attorneys, who are reporting to managers who are career staff. As I side note, I joined DOJ in the fall of 2000 right before Attorney General Ashcroft took over. There was no change in our office, which only handled criminal work.
Ross Douthat, You Must Serve Trump, NY. Times, Nov. 11, 2016
David Luban, The Case Against Serving, JustSecurity, Nov. 14, 2016
Daniel Drezner, The Dilemma of Serving in a Trump Administration, Post (online), Nov. 14, 2016
David Kaye, Anticipating Trump: Should Government Lawyers Stay or Go?, JustSecurity, Nov. 14, 2016
Oona Hathaway, Work for the Trump Administration? Yes, But Be Prepared, JustSecurity, Nov. 14, 2016
Note: JustSecurity says that the Luban, Kaye and Hathaway pieces are part of a “series on the ethical and legal dilemmas of serving in the Trump administration” that will include additional essays by Ryan Goodman and our own Sam Moyn, and perhaps others.
Susan Hennessey, The Duty To Serve in Trump’s America?, Lawfare, Nov. 18, 2016
Benjamin Wittes, More on Donald Trump and the Justice Department, Lawfare, June 8, ,2016
Eliot Cohen, I told conservatives to work for Trump. One talk with his team changed my mind, Wash. Post, Nov. 15, 2016