Reprint: Legal Ethics and the Constitution

 

Justice Department lawyers work for justice and the Constitution – not the White House

The U.S. flag flies above Department of Justice headquarters on Jan. 20, 2024, in Washington. J. David Ake/Getty Images

Cassandra Burke Robertson, Case Western Reserve University

In the 1970s, President Richard Nixon tried to fire the Department of Justice prosecutor leading an investigation into the president’s involvement in wiretapping the Democratic National Committee’s headquarters.

Since then, the DOJ has generally been run as an impartial law enforcement agency, separated from the executive office and partisan politics.

Those guardrails are now being severely tested under the Trump administration.

In February 2025, seven DOJ attorneys resigned, rather than follow orders from Attorney General Pam Bondi to dismiss corruption charges against New York Mayor Eric Adams. Adams was indicted in September 2024, during the Biden administration, for alleged bribery and campaign finance violations.

One DOJ prosecutor, Hagan Scotten, wrote in his Feb. 15 resignation letter that while he held no negative views of the Trump administration, he believed the dismissal request violated DOJ’s ethical standards.

Among more than a dozen DOJ attorneys who have recently been terminated, the DOJ fired Erez Reuveni, acting deputy chief of the department’s Office of Immigration Litigation, on April 15. Reuveni lost his job for speaking honestly to the court about the facts of an immigration case, instead of following political directives from Bondi and other superiors.

Reuveni was terminated for acknowledging in court on April 14 that the Department of Homeland Security had made an “administrative error” in deporting Kilmar Abrego Garcia to El Salvador, against court orders. DOJ leadership placed Reuveni on leave the very next day.

Bondi defended the decision, arguing that Reuveni had failed to “vigorously advocate” for the administration’s position.

I’m a legal ethics scholar, and I know that as more DOJ lawyers face choices between following political directives and upholding their profession’s ethical standards, they confront a critical question: To whom do they ultimately owe their loyalty?

President Donald Trump speaks before Pam Bondi is sworn in as attorney general at the White House on Feb. 5, 2025. Andrew Harnik/Getty Images

Identifying the real client

All attorneys have core ethical obligations, including loyalty to clients, confidentiality and honesty to the courts. DOJ lawyers have additional professional obligations: They have a duty to seek justice, rather than merely win cases, as well as to protect constitutional rights even when inconvenient.

Excerpt: Meditations on the Wise Use of Power

 From Rebecca Solnit's marvelous blog, Meditations in an Emergency:

 Here's another thing about power; the power the Trump Administration has is largely what we give it. They often cave when it is not given or when it's taken away by the courts. And they're spending power, not tending it, by breaking alliances, support, relationships, treaties. their threats to seize Greenland. They may desire to make the US weaker, because they may think a weakened country with undermined institutions may be easier to dominate, but as the heads of government they're also making themselves weaker. The administration has sabotaged relationships with our neighbors, Canada and Mexico, and with NATO and EU allies. So they're losing the power of alliances abroad, along with the power of public support at home.

 They seem to have miscalculated--so far as I can tell by assuming their power is boundless, to be endlessly spent, never built up and protected, as political leaders normally do. Take the threats to seize Greenland, which is an autonomous territory of Denmark, which in turn is part of the European Union and NATO, so that any invasion of the indigenous-majority island would be an attack on these powerful alliances. The loud threats have infuriated and alienated Greenlandic and Danish and many other people around the the world. The stunt whereby the administration decided to send the vice president's wife to Greenland for what was clearly a publicity campaign pretending to be a little holiday backfired badly. 

 Usha Vance was going to attend a dogsled race, show herself about, and then the vice president decided to join her. Greenlanders made it so clear they were so unwelcome that they limited their tour to a few hours at the isolated US military base for a pathetic photo op. It was a fool's errand and they showed their weakness by backing down from something that was always a dumb idea and maybe one that shows they lack intelligence in the ordinary sense of being smart and the specific sense of having good analysis of the political situation and the consequences of given actions. Or maybe they think their power is irresistible, but a small indigenous population resisted it effectively. They certainly failed, again, to anticipate both public reaction to their conduct and the fact that the public has power too. 

 Elon Musk has helpfully just proven how resistible power is, or the folly of confusing mountains of money with outright power. He had an apparent meltdown last night over his failure to buy the Wisconsin supreme court election, in which his candidate didn't just lose but lost in a landslide. And earlier he choked up on Fox News talking about the protests against Tesla and the impact it's having on the company's valuation. Both these things demonstrate the limits of his power and the scope of our power. The Tesla protests are working. People have the power. 

In Troubled Times: Rumors of War

World War II cast a long shadow, and my generation was born in the aftermath. Then the shadow burgeoned into a decades-long frenzy of terror of communism. The Soviet Union was the incarnation of evil, of course, and war was ever imminent. Not just any war, though, for the atomic genie had been released from its bottle. The world came perilously close on a number of occasions. In between crises, every international twitch was scrutinized, analyzed, and dissected. Meanwhile, we kids were practicing “duck and cover,” as if hiding under a school desk could protect us from a nuclear blast.

Presidents came and presidents went, and the threat of annihilation waxed and waned but never left us. We focused on smaller wars where we had the illusion we could actually change the world. As it turned out, all those protest marches against the Viet Nam War did make a difference in the end, although at the time it didn’t seem so. In retrospect, I believe the sense of powerlessness and insignificance caused as much damage to our confidence in the future as any military threat. Which is not to say that the threat of nuclear war was not real, but rather that my generation internalized it in a way that left us vulnerable to being triggered by other events.

Humans aren’t very good at estimating the relative danger of various things. We exaggerate some risks and minimize others. Some dangers frighten us out of all proportion to the odds of them happening to us. We casually ignore other things that are much more likely to injure or kill us. The possibility of war and its affect on us, personally and nationally and globally, is no exception. We panic or we shrug or we pretend or we drive our fears into our subconscious minds, where they erupt as irrational behavior or nightmares.