What do Sally Yates, Jack Goldsmith, and Kirk Douglas have to do with each other? Read on.

Harvard Professor Jack Goldsmith’s post over on Lawfare about the former acting Attorney General Sally Yates’ behavior (Quick Thoughts On Sally Yates’ Unpersuasive Statement) is exceptionally well done.  Regardless of one’s political persuasion, it ought to be read by every lawyer, law student and – especially – every legal academic.  I urge you to read the post in its entirety as no extract can do it justice, but here’s a sampling:

Yates states at the end of her letter that she is “not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.”  This statement summarizes the two major points above. First, she believes the standard for defending the EO is “best view of the law,” not reasonable legality, and she is not convinced the EO is consistent with the best view of the law.  But as noted above, the typical standard for the Attorney General to defend an EO of the President is not whether she is convinced of its legality.  Rather, the standard is something closer to the idea that she should defend the EO unless she is convinced of its illegality–i.e. she defends if there is a reasonable argument for its legality.  Second, Yates believes that defending the EO is inconsistent with her responsibilities to interject a policy analysis about the wisdom and justness of the EO independent of the President. For reasons stated above, I do not believe that either of these arguments are persuasive given her role.  Nor are they consistent with what I understand the duties and responsibilities of the Attorney General to be.

Ben Wittes, a vociferous critic of the President, had his own observations about Goldsmiths’ post in his review (“What Yates Should Have Done”). Here’s how Ben closes his post:

Yates should have resigned. 

Everything she said in her statement amounts to the following: I disagree with what the president did, I don’t trust his motives for doing it, and I think opposing litigants may have some very strong arguments.  I agree with all of those points.  And they would have made up just as rip-roaring a letter of resignation—one that would have done her and the department honor—as they made up an unconvincing order to the department. Instead, she took a step that amounted to frank insubordination and amply justified, indeed necessitated, her removal, a step which actually muddied the moral waters of our current situation.  And she emerged with no more job protection than had she orchestrated her own exit in a fashion that kept her on the right side of propriety. 

Yates had a bad hand, yes, but she also played it badly. 

Score one for Trump.

There are some real lessons here, whether you agree with Goldsmith or not.  Apart from his superbly reasoned argument, Jack is doing what the legal academy (i.e., law schools) ought to be doing: demonstrating real moral courage in setting forth a view that many may not want to hear, but need to hear.

Why is this so important?  I’m convinced that too many in the national security law (NSL) community in our law schools and beyond have allowed their animus towards Trump personally to cloud their legal judgments on a range of issues.  In fact, some are making statements I’ll bet they’ll regret when applied to a future administration more congenial to their ideological druthers.  In their eagerness to denounce the President, they’ve become blinded to any possible flaws of form or substance in their legal analysis.  This isn’t good for anybody, but it’s especially damaging to young lawyers-to-be.

Given the tenor of the times, I expect some people will accuse Goldsmith of all sorts of things.  They may paint him as an apologist for everything Trump is doing.  If so, they will ignore the fact that he didn’t opine on the EOs themselves (a discussion for another day), but rather examined the appropriate role of a lawyer in government, as well as the proper path that an attorney ought to take when he or she disagrees with policy (a course Yates clearly did not take).

Academia these days is too often hostile territory for anything that smacks of any deviation, however slight, from the popular zeitgeist as defined by left.  A practicing Catholic or military veteran?  Suspect almost by definition.

Add to that the fact that we know, for example, that free speech is under siege on many campuses.  But the absence of diverse views really does hurt the educative process.  Last year Washington Post reporter Christopher Ingraham in an insightful article (“The dramatic shift among college professors that’s hurting students’ education”) concluded that:

American politics seems to work best when the two main factions are animated by rigorous thinking and serious ideas.  And if there’s no home for conservative ideas at today’s colleges, it stands to reason that our political discourse will be poorer for it.

Ironically, Goldsmith’s (and, for that matter, Wittes’) essay is not even an expression of “conservative ideas” but rather what are – and should be – mainstream views about the proper conduct of a public official.  It’s evidence as to where we are today that other commentators are not even recognizing what might have been wrong with Yates’ behavior.

This week, by pure happenstance, I showed my international law of armed conflict class the “I am Spartacus” clip from the famous 1960 film.  (If you haven’t seen it, please take a few moments to do so, otherwise, “spoiler alert”!).  Here’s a good description if you don’t watch the clip:

I am Spartacus” [r]efers to a scene in the movie “Spartacus” starring Kirk Douglas as Spartacus.  After the army of former Roman slaves led by Spartacus is defeated in battle by legions of the Roman army, a Roman general stands before the captured surviving members of the slave army and demands that they turn over Spartacus, or else all of the former slaves will be executed.  Upon hearing this and not wanting his friends to be executed, Spartacus stands up and says “I am Spartacus.”  However, the loyalty of his friends is so great that each of them stands forward in succession, shouting “I am Spartacus!” until the shouts dissolve into a cacophony of thousands of former slaves each insisting “I am Spartacus!” Bewildered and still not knowing which of them is Spartacus, but impressed by the loyalty he inspires in his army, the Roman general has all of the slaves crucified in a miles-long display alongside the Appian Way leading back to Rome.

When I read Jack’s post the following morning, I thought of all the opprobrium that could (likely) be heaped upon him by academics and others.  I knew I needed to stand with him, and that’s why I almost called this post “I am Jack Goldsmith” (really!).  Yes, there is that crucifixion part…but I’d be in good company!

As Mark Twain observed, “it is curious that physical courage should be so common in the world and moral courage so rare”…but then again, as Billy Graham once said, that when courage is shown, it’s “contagious” adding this inarguable observation: “when a brave man makes a stand, the spines of others are stiffened.”  This is the real meaning of the “I am Spartacus” adage, and why “I am Jack Goldsmith” applies today.

I am also reminded of my former boss, retired Lt General Jack Rives (now executive Director of the ABA).  As Charlie Savage memorialized in his book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Rives was among the first of the uniformed lawyers to oppose torture and other excesses in the early years after 9/11 by penning a series of what Savage calls “vehemently argued memos.”  That would be chic today, but in 2003 it was perilously iconoclastic and decidedly unpopular in many quarters.

But in lots of ways his actions empowered others to stand firm on the right things.  It would be a mistake, however, to think of Rives as an undifferentiated opponent of everything the then administration and its politicos were doing.  He was careful about avoiding the “throwing the baby out with the bathwater” syndrome that is infecting academia today.  Even when an idea came from someone he disliked (loathed?), Rives never allowed the source of the information/opinion to be the sole reason to judge it irredeemably flawed.  When satisfied with the reliability of data, his mantra frequently became, “new facts, new opinion.”

This is what the best lawyers do.  It is rarely the case that a client (or cause) is all bad…or all good.  In many cases our job is to mentor others to success.

An example from a non-lawyer?  I note that months of screeching and highly-personal denunciations by scores of law professors left the now-President unmoved as to his views about torture.  It’s a tribute to the art of advocacy that it took an astonishingly short – but, I would wager, reasoned and respectful – discussion with General Jim Mattis to turn around the situation.

Query: aren’t lawyers supposed to be the ones professionally trained in the art of advocacy?  Shouldn’t the rank ineffectiveness of their advocacy on this issue be a cause of sober introspection for the profession?

Goldsmith’s essay may help to stiffen spines of those NSL experts in academia and elsewhere who can – and should – be providing dispassionate, apolitical legal analysis that the public needs right now.  Having a partisan opinion – even a strident one – is, of course, fine, but when it comes to what purports to be “legal” analysis, students and the general public ought to be exposed to conflicting nuances and even some outright opposing views.  I think in their heart-of-hearts a lot of people in the NSL community know this, but simply cannot resist hopping on the bandwagon of what’s popular in the proverbial ivory tower, or are bullied into jumping aboard.

Maybe it’s time to re-read (or, perhaps, read for the first time) the 2010 memorandum by David Margolis, then Associate Deputy Attorney General in the Department of Justice.  In it Margolis concluded that two former Justice Department lawyers – John Yoo and Jay Bybee – involved in the so-called “torture memos” had “exercised poor judgment by overstating the certainty of their conclusions and underexposing countervailing arguments.”  (Italics added.)

Years ago I read a wonderful book published in 1979 by the great civil rights attorney, Aryeh Neier. Entitled Defending My Enemy, it greatly influenced me as a young man, and I’ve thought about it many times over the years.  Recently, Neier was asked in an interview about what he thought was the greatest threat to free speech today.  He said “[t]o a certain extent I worry about political correctness as a threat to freedom of speech.”  He added: 

I worry that sometimes the people who are concerned with those issues seek to restrict speech by antagonists of those positions.  And I think it’s important to defend free speech in all circumstances; there shouldn’t be any exceptions.

As undeniable as Mr. Neier’s point is, what we should really aim for – in the legal academy anyway – is not simply grudging adherence to the minimums of free speech or academic freedom, but rather the creation of an environment that encourages the sort of fuller exposition of issues that leads to better insights and more informed views.  Students deserve nothing less as they – I want to think anyway – really do want to hear both sides.

A final quote for law professors and other lawyers to ponder if they want to dissent in some way from the popular orthodoxy of today’s academia, but who also realize the potential personal cost.  Interestingly enough, it comes from someone who during his life was a mostly unpopular President, and who was elected with just 39.8% of the vote.  Here it is:

I desire so to conduct the affairs of this administration that if at the end… I have lost every other friend on earth, I shall at least have one friend left, and that friend shall be down inside of me.

Abraham Lincoln

Words to think about as you decide who you want to be.




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