What does an Attorney General do when confronted with a lawless President? At first glance, the answer is easy, but on second thought, a realistic answer is complicated. The answer is complicated because the phrase “lawless president” is not necessarily pejorative. In fact, western leaders have always exercised a prerogative power to throw the law overboard when they see fit. Some of our greatest Presidents have followed this path. Thomas Jefferson did, as did Abraham Lincoln and Franklin Roosevelt.
So what does the President’s Attorney General do? The law and principles of professional responsibility offer a clear answer to the question whether an attorney should conspire with the President to act unlawfully. The short and simple answer is “no.” If we seek more nuanced guidance than this procrustean solution, we must look beyond the law and beyond the principles of professional responsibility. A lawless official must seek guidance in extra-legal—hopefully moral— principles.
This existentialist essay ignores the question of what an attorney should do. To be sure, one could ruminate on the issue, but that is not the path here taken. Instead, the essay describes how one capable and honorable Attorney General actually dealt with the problem. The exploration concentrates on the “is” (was) and not the “ought.” This approach accords with the wisdom of an experienced and thoughtful observer of public life: “It seems better to me to go straight to the actual truth of things rather than to dwell in dreams." ...
How does a particular Attorney General determine whether to facilitate Presidential lawlessness? Stuart Hampshire has persuasively argued that this difficult question cannot be answered through rational analysis. To be sure, there are a number of factors relevant to the question. Respect for the rule of law is at the head of the list and in almost all cases, will influence a President and Attorney General to act lawfully. In a small number of situations, however, other considerations may outweigh respect for the law. Weighing and balancing these considerations is not a rational process.
Based upon decades of experience in government, Lieutenant General Charles Pede16 has provided advice that should make sense to practicing lawyers. He asks, “[H]ow do you know what the right thing is?” He replies, “[Y]ou trust your gut. You talk with your trusted friend, perhaps you pray, you ‘let things cook’ for a while, but deep down, trust me, you’ll know. It wells up in your gut and your gut tells you.” His advice based upon a lifetime of professional experience is a practical application of Hampshire’s persuasive theoretical analysis. In giving this advice, General Pede was not addressing the difficult issue of conspiring to commit a crime.
Robert H. Jackson was the Attorney General who conspired to assist the British in their hour of desperate need, and his career illustrates approaches or tactics for dealing with a lawless President. He is almost universally respected as a capable and honorable public servant. More than once, Jackson had to deal with President Roosevelt’s desire to cast the law aside.
The present essay draws upon H.L.A. Hart’s The Concept of Law to develop a model for thinking about Jackson’s service to his President. Then the essay notes a few specific historical occasions in which western leaders have acted lawlessly. After that, we turn to details of Jackson’s service as a praxis for understanding the plight of an Attorney General serving a lawless President. Finally, the essay concludes by emphasizing the value and importance of passing moral judgment on the actions of an Attorney General.
William R. Casto, Serving a Lawless President, 72 Mercer L. Rev. 855 (2021).