Government Lawyers in the Trump Administration
W. Bradley Wendel
Volume 69, Issue 1, 275-352
The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this administration will aggressively seek to use state power with little regard for the rule of law. A great deal has been written about the constitutional and administrative law regulating inter and intra branch separation of powers. However, there is no comprehensive legal and theoretical analysis of government lawyers as lawyers.
This Article engages with numerous contested issues in the law of lawyering, the history of unethical behavior by government attorneys, and jurisprudence to provide a constructive legal and ethical conception of government legal advisors. In practical terms, it may serve as a source of guidance for lawyers in the new administration, or as a roadmap for discipline by lawyer regulators. More theoretically, it defends a conception of the rule of law as a practice of reason-giving, not dependent upon legal objectivity or determinacy. The Executive Order banning travel to the United States from several Muslim-majority countries, and the subsequent firing of Acting Attorney General Sally Yates, are case studies illustrating the ethical analysis in this Article.