Should Those Who Served the Trump Administration Reluctantly Now Feel Remorse?

President Donald Trump’s administration may be unique in the number of prominent alumni who have come away unhappy or contrite over serving him, including high profile figures such as Anthony Scaramucci, James Mattis, and John Bolton. It was a recurring question from the earliest days of his presidency. Should people who opposed or questioned Trump’s policies or found his temperament offensive take positions in the administration where they might be able to mitigate his worst impulses? Or should they refuse or resign in protest, perhaps to be replaced by more obsequious and less scrupulous functionaries?

One young lawyer who worked in the Justice Department until 2018 took to the New York Times recently to express deep regret for the time she spent working in President Donald Trump’s Office of Legal Counsel, a division Department of Justice where, as she put it, lawyers write “permission slips” attesting to the legality of executive orders. Erica Newland, a holdover from the Obama administration, at first believed that she could better serve the country by “pushing back from within” against Trump’s efforts. And while she and her colleagues succeeded in narrowing some of Trump’s policies, their success came at a price. “We attorneys diminished the immediate harmful impacts of President Trump’s executive orders—but we also made them more palatable to the courts.”

Newland has come to the conclusion that she and her colleagues, who were “some of the country’s finest lawyers,” should all have quit at the earliest opportunity, which would have left the Trump administration in the hands of some of the “second-rate lawyers,” like Rudy Giuliani, who have clownishly failed to overturn the presidential election. Given their “lack of basic legal skills,” says Newland, those attorneys might likewise have failed in their attempts to defend Trump’s Muslim ban and other ugly and destructive policies.

Newland’s heartfelt apology is deeply moving, and I certainly would not have advised anyone to participate in Trump’s “systematic attacks on our democracy,” but she makes two basic mistakes. First, Newland argues that the resignation of elite Justice Department lawyers would have forced the Trump administration to employ lesser talents who would have been unable to achieve any victories in court. Second, she overestimates the ability of top lawyers to sell worthless cases to the courts.