UIC Law Review Volume 23 Issue 2 Article 2 Winter 1990 On the Steadfastness and Courage of Government Lawyers, 23 J. Marshall L. Rev. 165 (1990) Roger C. Cramton Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Jurisprudence Commons, Legal History Commons, Legal Profession Commons, and the President/Executive Department Commons Recommended Citation Roger C. Cramton, On the Steadfastness and Courage of Government Lawyers, 23 J. Marshall L. Rev. 165 (1990) https://repository.law.uic.edu/lawreview/vol23/iss2/2 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. ON THE STEADFASTNESS AND COURAGE OF GOVERNMENT LAWYERS ROGER C. CRAMTON* Some years ago, during my relatively short period of service in the United States Department of Justice, a feeling of pride would overwhelm me as I passed before the inscription on its massive walls: "The United States wins its point whenever justice is done its citizens in the courts." Lawyers in general are partisans serving the often selfish desires of their clients. As one recent commentator strongly stated, "Lawyers don't give a damn about justice, [they just want to win for their clients]."' But I was part of an institution that had "justice" in its name; and the stream of lawyers who shaped its traditions and culture took that designation seriously.2 The culture of the Department, to be sure, included a body of traditional doctrines that tended to favor the United States over other parties in litigation. These doctrines placed the Department in a position of primacy in quarrels within the federal government be- tween agencies and departments. 3 Sometimes the emphasis on these aspects of the Department's tradition led outsiders to argue for striking "justice" from its title in place of a more apt description, such as "the Department of Government Litigation." The Depart- ment represents the varied interests of many agencies and depart- ments, mediates among them in situations of conflict, and seeks to provide a degree of coordination and consistency to the litigating positions of the United States. This posture of the Department gives its lawyers a breadth of perspective that led them to view the long- * Roger C. Cramton is the Robert S. Stevens Professor of Law, Cornell Univer- sity. This article was initially delivered as a talk at a conference on the Attorney General and the Pursuit of Justice held at The John Marshall Law School on Sep- tember 22, 1989. The author gratefully acknowledges the valuable research assistance of Richard Batchelder, Class of 1990, Cornell Law School. 1. D. LUBAN, LAWYERS AND JUSTICE: AN ETHICAL INQUIRY 16 (1988). 2. For general discussion of the Department of Justice and its history, see H. CUMMINGS & C. MCFARLAND, FEDERAL JUSTICE (1937); J. EiSENSTEIN, COUNSEL FOR THE UNITED STATES (1978); L. HUSTON, THE DEPARTMENT OF JUSTICE (1967); V. NAVASKY, KENNEDY JUSTICE (1971). 3. For discussion of the special law governing the United States as a party, see P. BATOR, D. MELTZER, P. MISHKIN & D. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM ch. X (3d ed. 1988) (Federal Government Litiga- tion); 14 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE §§ 3651-3660 (1985 & Supp. 1988). The John Marshall Law Review [Vol. 23:165 term interests of the United States, and especially of the executive branch, as their guiding light." The Department of Justice may well be the world's largest law firm. Its 5300 lawyers are found in a num- ber of litigating divisions responsible for the enforcement of a dis- tinct set of federal laws (including, inter alia, antitrust, criminal, land and natural resources) and in United States Attorneys' offices scattered around the country.5 I was the Assistant Attorney General in charge of the Office of Legal Counsel, a small shop of lawyers' lawyers who furnish legal opinions for the other divisions as well as for the Executive branch. William Rehnquist preceded me by a year or so; Antonin Scalia followed me by a year or so. But here I am, still a law teacher! The top levels of the Department are staffed with officers ap- pointed by the President with the consent of the Senate. An addi- tional group of deputy positions are political appointments. The vast bulk of lawyers in the Department's Washington offices, how- ever, are able young lawyers hired through the Department's honors program or career lawyers who are devoting their professional lives to assist the Attorney General and the President in enforcing the laws of the land. Enforcing the teeming multiplicity of federal laws is not an easy job-the factual and legal issues are difficult and complex, and Pres- idents and Attorneys General have a habit of coming and going. Not all of them bring to the office the same views concerning the inter- pretation and application of existing federal law, to say nothing about ways in which new regulations or statutes should shape and reform the law. Yet some things are constant. Whoever heard of an Attorney General who was not basically a "law and order" type 4. The duties and responsibilities of government lawyers are shaped by statu- tory and constitutional law as well as by the rules applicable to lawyers generally. It is difficult to answer the question, "Who is the client?" without regard to a broad array of law and policy applicable to the particular issue involved. For example, the federal government lawyer's duty of confidentiality is shaped by the professional code adopted in the jurisdiction in which the lawyer is practicing. In addition, this duty of confidentiality is further shaped by special rules of federal law prohibiting the release of some information (e.g., individual tax returns) and permitting the release of other information (e.g., public records) and by law and policy emanating from separation- of-powers considerations (e.g., lawyer in federal agency required to disclose informa- tion concerning corrupt behavior of agency official to responsible law enforcement officers of the Department of Justice). See generally C. WOLFRAM, MODERN LEGAL ETHIcs 753-58 (1986); Josephson & Pearce, To Whom Does the Government Lawyer Owe the Duty of Loyalty When Clients Are in Conflict?, 29 How. L.J. 539 (1986) (government attorneys' different approaches to conflicts between government author- ities); Lawry, Who Is the Client of the Federal Government Lawyer? An Analysis of the Wrong Question, 37 FED. B.J. 61 (1978); Miller, Government Lawyers' Ethics in a System of Checks and Balances, 54 U. CHI. L. REV. 1293 (1986). 5. See OFFICE OF FED. REG., THE UNITED STATES GOVERNMENT MANUAL 370-79 (1988). 1990] Steadfastness and Courage when it came to enforcement of federal criminal laws?6 And who has ever encountered an Attorney General who, insofar as relevant legal precedent permitted, did not further his President's major policies? In general, with only rare outbreaks of civil or uncivil disobedi- ence, the Department's lawyers are professionals who realize that each administration is entitled to make its mark on federal law. If plausible legal arguments are available to support the directions in which the President wants to move, the Department's lawyers are vigorous and effective advocates of Executive branch policies. That is not to say that there might not be a bit of grumbling and disputation in particular instances. The career lawyers usually urge an institutional view of the interests of the United States on their temporary political leaders. Existing precedent and practice are known and familiar; career lawyers may initially view proposals for a change of policy or approach with skepticism. Ultimately, how- ever, the career lawyer's obligation is to the responsible officials who have been properly selected through our constitutional processes of election and appointment to define the interests of the United States.7 As able and dedicated professionals, the Department's law- yers take this obligation seriously in their day-to-day work. If a po- litical push finally came to a shove, their response would depend upon the plausibility of the legal position that Department officials assert. The career lawyers would attempt to persuade the responsi- ble officials to adopt what they perceived as the correct or best ap- proach. These career lawyers' knowledge, experience, and persuasive talent often overcome initial resistance. Short-sighted political winds of the moment rarely prevail. If, however, plausible legal ar- guments exist in support of the position that the political appointees advocate, and the career lawyers lose the argument for following current law or practice, they would do their best to support the posi- tion adopted. In very rare circumstances, their courage and stead- fastness has led to instances of what has come close to civil disobe- dience-an individual or collective choice that a particular position was so lacking in merit that they refused to advance it. In short, Department lawyers usually exemplify the best traditions of the le- gal profession. Expressions of direction and control from outside the Depart- ment, however, are extremely rare. Most of the day-to-day work of the Justice Department involves established positions that no new administration seeks to challenge or to change. Although the De- 6. There are rare exceptions to this general proposition. For example, "Ramsey Clark as a matter of policy chose not to enforce the court-ordered electronic surveil- lance procedures of the 1968 Omnibus Crime Control Act . [while] John Mitchell chose to do so .... R.