JURIST Guest Columnist Benjamin G. Davis of University of Toledo College of Law discusses the recent turmoil over the changes in the Trump administration…

With the recent turmoil of the Monday Night Massacre (firing of the Acting Attorney General Sally Yates and the firing of the Acting ICE Director Daniel Ragsdale) coupled with the dissent by members of the Foreign Service to the Trump Muslim Ban Executive Order, the response of the current Administration is to tell those bureaucrats to quit or get on the “one team.”

In addition to the plight of said bureaucrats one can think about the plight of top officials who are being portrayed in two ways: either as having been out of the loop ( Secretary of Defense Mattis, Secretary of Homeland Security Kelly, Director of the Central Intelligence Agency Pompeo, and the nominee for Secretary of State Tillerson) or being overruled (at least for a period of time) by a couple of Presidential assistants (Stephen Miller and Stephen Bannon). Either way these top officials are put in the unenviable position of being humiliated as being mere figureheads in their offices, rather than as engaged senior leaders of the Trump Administration.

For those who disagree with a policy and/or the manner in which they are being treated, should they resign in protest?

History suggests that if you ever want to work again at a high level in Washington, DC, one better not resign in protest. This view is based on a wonderful somewhat dated book done by the late New York University Professor Thomas Franck and Director of International Studies and Associate Professor of Political Science at the State University of New York at Binghamton Edward Weisband entitled Resignation in protest: Political and ethical choices between loyalty to team and loyalty to conscience in American public life (Grossman Publishers 1975).

The authors examined cases of individuals at the breaking point: protest resignations compelled by unbearable misgivings as well as top officials who disagree profoundly with key government policies but who keep silent, placing loyalty to the team or careerism ahead of loyalty to principle and to the public. It is a reflection on the costs of a system based above all on the value of “team play.”

The authors noted that “The person who sacrifices team loyalty in order to pursue a competing value, such as integrity, is likely to have brought to bear against him the coercive weight of that society’s historically conditioned sense of self-preservation. Societies, groups, organizations systematize the process of making value-judgments. Indeed, they systematize the very process of perceiving reality.”

After a review of a number of cases spanning the 20th century up to that point, they conclude that “the historic record indicates that ostracism, rather than respectability, is the probable reward for ethical autonomy.”

Given that ostracism, it appears fairly obvious that calls for resignations in protest in our governmental culture are calls to ask people to commit the equivalent of political suicide without any assurance that they will be rewarded for their ethical autonomy. Our system does not tolerate such acts of rebellion.

On the other hand, if one feels compelled to resign, the more quiet resignation with some anodyne statement (for health reasons, to spend more time with one’s family) and — most importantly no hint of dispute — is the acceptable route. The power of the resignation seems to come in what is unsaid rather than what is said.

The authors’ recipe is that we should as a polity lower the costs the ordinarily ambitious political aspirant must pay to have, and to manifest, a healthy amount of ethical autonomy. And these costs would certainly be less “if the public were to decide to lower them: by respecting the dissident, the man or woman who refuses to subordinate his conscience or his duty to the public, and by weighing thoughtfully what he has to say, rewarding or punishing in accordance with the social importance and the political validity of his or her dissent.”

“Vietnam and Watergate: the names are synonymous with insufficiently fettered Presidential discretion. If America is ever to construct a working system of checks and balances within the executive branch, it will have to revise its judgment of those who exercise their option to ‘exit’ with ‘voice.’ It will have to excuse, and even reward, that disloyalty to a President which bespeaks a higher loyalty to the democratic system.” The authors contrasted us with the British approach and found us wanting.

So how do we free our minds?

One path to that way of thinking is to stop the confusion in our culture between the individual serving as President and the Presidency. When I was working on a project for the late Vincent Bugliosi on the possibility of a prosecution in California State Courts of former President George Bush for murder and conspiracy to commit murder with respect to taking us to War in Iraq on false pretenses, one of the first things I found I needed to do was to unlearn the received wisdom that the President’s and the Presidency’s powers are coterminous. The hypothetical I used to open my mind was to imagine that the President of the United States was selling crack cocaine out of the Oval Office for what he/she said was national security reasons. Would such a President be immune to prosecution for such actions? Back to President Ford’s pardon of Richard Nixon we can see that the individual elected President could incur criminal liability for those acts done while President that were beyond the pale of the President’s constitutional or statutory powers.

Contrast the quiet resignation, the resignation in protest, with the kind of spectacular firing that we have seen this week. In particular let us think of the case of Acting Attorney General Sally Yates who no doubt knew that once she had decided to make public her memo she was going to be fired. Her memo remains part of the work of a person in the role rather than some after the fact statement. The authors suggest that as a culture her going public is not rewarded.

On the other hand, whether rewarded or not, a firing can be a badge of honor (Archibald Cox by President Richard Nixon who went back to academia) or of shame (“Scooter” Libby , Michael D. “Heckuva job Brownie” Brown by President George Bush). Firings are about causing violence to a person and asserting control over a polity through this act of violence. Time will tell how the Sally Yates and Daniel Ragsdale firings will be perceived.

So at least based on Franck and Weisband, top officials and/or bureaucrats should not resign in protest because we do not as a culture tolerate that kind of activity. They should resign quietly for anodyne reasons, make their disagreements private as opposed to public, and suffer the consequences of being fired for their passionate internal dissent.

They should not quit in protest. I am not underestimating the difficulty of their position, but maybe persons should remember what my late father (a Foreign Service Officer) once said to me, “I have served six Presidents.” Meaning, at least for the bureaucrats if not the top officials, these folks too shall pass.

Just sayin’.

Benjamin G. Davis, professor of law, is a former member of the American Bar Association (ABA) Standing Committee on Law and National Security. He is a Founder of Advocates for U.S. Torture Prosecutions. Davis led the adoption of the 2006 American Society of International Law Centennial Resolution on Laws of War and Detainee Treatment. Davis is an international expert on topics such as cyber dispute resolution, drones, detainee treatment, military commissions, torture and international law. He is a graduate of Harvard College (BA), and Harvard Law School and Harvard Business School (JD/MBA).

Suggested citation: Benjamin G. Davis, Muslim Ban or otherwise: Should a bureaucrat resign in protest?, JURIST – Academic Commentary, Feb. 2, 2017, http://jurist.org/forum/2017/02/Benjamin-Davis-bureaucrat-resignation.php