Further Thoughts on the Ethics of the Anonymous NYT Op-ed

Fear, Bob Woodward’s forthcoming book about the Trump White House, and the subsequent anonymous op-ed published in the New York Times, “I am Part of the Resistance Inside the Trump Administration,” has stirred a lot of debate in the press and on social media channels, including among some scholars of politics and public affairs. I tweeted a generally negative reaction:

Assuming it is not a hoax, it is obviously self-serving, amoral, and laced with “conservative” policy claptrap. No sense of adherence to any reasonable model of administrative ethics tied to democratic accountability, including illuminating the effects of the choice voters made.(here)

David Lewis at Vanderbilt University responded, although his tweet was aimed at the larger negative reaction to the op-ed, I presume, because I never questioned the courage of the op-ed author, one way or the other.

Critics on the left and right calling the NYT op-ed writer a coward are off the mark. Resigning & speaking out publicly is unlikely to make a difference. Doing best you can while investigations play out seems reasonable to me. Has he/she already talked to Congress?

David offered further observations in several subsequent tweets not necessarily in response to my argument.

Calling this a coup is incredibly off base. All appointees work for the Constitution and the laws first. Neither requires doing what the president wants. All Senate confirmed appointees work for Congress and the president[.]

All appointees doing their job well try to balance their responsibilities to the Constitution, law, Congress, and the president. All appointees doing their job well will try and prevent the president from doing things a fully informed president would not want to do[.]

FWIW, there is no other way to see this than as a serious management failure by the president. Is this the CEO president many were looking for? NYT OpEd writer is not an Obama appointee. It is not a career civil servant. Leadership matters[.]

Finally, Andy Whitford of the University of Georgia briefly chimed in, tweeting “This op-ed is weird. I don’t know what to think about it. Too many strategic dimensions.” I responded by stressing that it is the ethical dimension that is most important to me currently, because I’ve been exploring what administrative ethics principles might support career administrators defying presidential directives.

So, what do I find ethically suspect in the circumstances and actions described in the anonymous op-ed, and in the many similar accounts coming to light from Woodward’s book? My base position is not too different from that expressed by numerous journalists and commentators. Officials at the highest levels of the executive branch who believe the president and his White House are so dysfunctional as to threaten not just good and functional government but peace and national security, have a fundamental obligation, captured in the broad sentiments of their oath to support the Constitution, to inform the other branches of government and the American public at large of the circumstances. It is the height of irresponsibility to cover up governmental failings this pronounced and serious, especially by actions that can, and have been, interpreted as a coup, or at least as an attempt to avoid suffering the consequences of having facilitated the continuance of a broken presidency once there is a reckoning in the wake of the Trump presidency.

Part of my motivation for this argument is that if things are as bad as these individuals claim, the American public needs to be informed in full about this so that attentive citizens can judge whether a corrective is in order. Individuals in the White House itself are likely to be seen as being able to make the most convincing and legitimate claim that something is terribly wrong. Anonymity diminishes that legitimacy and the validity of the reports of serious dysfunction considerably, and thus muddies further what is already a murky chaos.

But wouldn’t a bunch of White House officials coming forward publicly, to declare that the president is seriously failing in his duties and that action must be taken, look even more like a coup or mutiny? David offers an emphatic counterargument to that notion in one of his follow-up tweets. Peri Arnold made a similar point. I would only add if this is the scenario for a mutiny, then the 25th amendment provides for what is in effect a constitutionally authorized mutiny.

David also wonders, however, whether some of the individuals in the White House “resistance” are talking to Congress. Some of them may be covered by whistleblower protection law, which expressly authorizes some executive branch personnel to inform Congress of what they regard as illegal actions even if they are ordered by their executive branch superiors not to talk to Congress. (Personnel in the national security agencies are excluded, and the president can exclude others from this protection.) I would be more receptive to this possibility if there was any evidence that it was occurring or having an effect. But the majority party in Congress has shown no inclination to investigate the president’s actions. Instead, they are behaving in typical congressional fashion, that is, doing all they can to avoid taking responsibility. Believe me when I say that when they sense it is safe to do so, they will fall all over themselves claiming credit for trying to stop the worst excesses of this president.

The source of any disagreement David and I have seem to be around his two main points: 1) Resigning & speaking out publicly is unlikely to make a difference; 2) Doing the best you can while investigations play out seems reasonable. The first is an empirical claim, based in part, I presume, on David’s sense that President Trump and his core of political support are impervious to the effects of such an action, unless, perhaps, it was en masse. But it may also be that David thinks the evidence for effective impact in the cases of past, high-profile resignations of major public officials is lacking. More to the point, I think the evidence is lacking either way, in part because the N is small and the evidence, as social sciences like to say, is anecdotal.

But who said anything about resignation? My argument is that some of these officials ought to come forward very publicly and declare this presidency is not functioning, detail the case for that, and in effect dare President Trump to fire them. He probably would, but suppose they refused to leave their posts? Now that might be considered a real mutiny, and the chaos that ensued might be 10 times worse that what we see now. My point, in part, is that we don’t really know. We don’t have any real experience with these circumstances, we don’t have a lot of guidance from normative political theory, administrative ethics, law, or regulation on what constitutes constitutionally legitimate insubordination and defiance of a president who subordinates conclude has gone off the deep end. It is easy for me to argue that it is most responsible to test these “known unknowns.” I’m not in the trenches trying to prevent World War III. But how do we know not testing them will be less destructive in the long run?

David’s response might be that these points are exactly why those White House officials should play it safe. No rebellion is wise, other than tactical actions like swiping papers off the president’s desk before he signs them. My rejoinder is, again, that this leaves us with not just fuzzy accountability but no accountability. If one takes an oath to support the Constitution but then one tries to hide from the accountability of one’s actions, one has failed to uphold that oath and has acted unethically.

Finally, what about David’s argument that it is most responsible to let the current investigations run their course, and try to hold the ship of state together until they do? Under normal circumstances of garden variety venality and corruption by a president, I would agree. But a whole lot of people think these are not normal times. Add to that what I perceive to be a deep and corrosive culture of denial of responsibility in all branches of the federal government, but especially among political appointees in the executive branch in the current moment, and I have to conclude that these folks are not coming clean that the ship of state they think they are holding together is in fact coming apart at the seams.

In an important sense, I agree with David that however suspect their actions seem, those “resisters” may be doing the best they can. After all, these individuals might legitimately ask, “What is supposed to guide us in making independent judgments about how best to serve the Constitution and the law?” As I continue to sift through theories of administrative ethics, I am increasingly convinced that there is no good answer to that question. I am convinced, however, that we have been badly served by theories of the presidency and the general evolution of conceptions of the administrative role that make subservience to the president in office the prime directive. We are seeing both appointees and career officials look more and more like what Alexander Hamilton called “obsequious instruments of [the president’s] pleasure” (Federalist 76). That is incontrovertibly bad for the republic.

Brian J. Cook, Virginia Tech


4 thoughts on “Further Thoughts on the Ethics of the Anonymous NYT Op-ed

  1. I wanted to quickly weigh in with a few points from Brian’s thoughtful comments on the New York Times Op-ed. We are all trying to make sense of the ethics of the moment. There are a few things on which we all agree. First, we all agree that we do not have full information on what the writer confronts and should, therefore, be slow to criticize.

    Second, we all agree that it is hard to tell whether a fully identified Op-ed or a public resignation would have made a difference. My very strong prior is that such actions would make almost no difference, whether it is one person or several. In this environment, with all that has happened, I cannot see such an act materially influencing politics or policy. It would be news for a day or two but not much longer. But, I freely admit I could be misreading the situation.

    If the person goes public and is removed or goes public and resigns, the President replaces him or her with a loyal person that may not provide the guardrails currently in place. That makes the decision to go public and leave possibly very consequential for both the spirit and letter of the Constitution and law this person swore to uphold. This is particularly true since you the Op-ed writer probably knows the likely candidates that would replace him or her.

    Finally, I think we all agree that there are differences of degree in insubordination. As I have said before, this is not a coup by any stretch of the imagination. This is an issue of degree. Each appointee has their own legal authority delegated them (and not the president) by Congress. They are obligated to implement the law as best they can. Where there is discretion, they should try and do what the president and Congress want. The issue is what to do when the President asks you to do something misguided or ill-informed (i.e., outside the wide range of reasonable actions)? Is ignoring or slow-walking the president’s wish wrong? Brian and I agree that appointees should do what is asked almost all of the time. We also agree that some things are so crazy that there should be some resistance, whether resigning in protest or something else. I think the NYT Op-ed writer probably agrees here. Ninety percent of the time the NYT Op-ed writer is doing what the president asks/wants with alacrity and the other 10%, he or she is slowing it down or trying to stop it. All appointees work this way. They try and stop presidents from doing things they would not want to do if fully informed. I think someone coming out publicly to shame the president and his staff and admit that you are trying to limit the ill-effects of the 10% is not, on its face, so problematic. Perhaps it is the best middle ground they can find.

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    1. Two brief points that I hope will lead to further discussion and debate at some future opportunity.
      First, Dennis Thompson’s 1985 essay in PAR still has something to teach us (or me, at least) about what the theoretical range of reasonable, and effective, administrative insubordination might be.
      Second, our discussion, and administrative ethics frameworks generally, tend to focus on the policy specific and instrumental. “What is right thing to do in response this decision/directive from my superior.” My main point about calling for public and more forceful expression of resistance is that we have seen, and the op-ed writer references, a multidimensional breakdown of the presidency. To me this calls for a broader, more forceful response that takes a constitutive orientation, not an instrumental one. John Burke refers to administrators needing to see their ethical quandaries in reference to “the enterprise as a whole.” He doesn’t ever develop that further, but I take it to mean that administrators at some point must confront and acknowledge the accumulation of dysfunction and corruption as threatening the enterprise as a whole — the American commercial republic. Ethics frameworks provide almost no guidnace for how to confront such instances in part because they are so rare. I think I can contribute to that, as indicated in my response to Peri Arnold, by developing the outlines of a “regime ethics.”

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  2. Too much of the criticism of Anonymous, and officials like Cohen described by Woodward, erroneously envision the president as having unlimited authority over his subordinates, authority that originates in popular election. Thus, his subordinates acting to defy his intent–the trade related document whisked off his desk by Cohen–then represents a defiance of of the popular will that elected Trump who promised such actions on trade. I take it that
    most of us can see the fallacy of that critique. Presidents do not have imperial control over the exec. branch, nor do voters send an articulate message about the policies they prefer. And of course, presidents are not elected in majoritarian, popular elections. So, rejecting this picture of the case, how might one understand Anonymous’ self-description? That officials are sworn to serve the Constitution and law, I think, gives them a warrant to question dubious presidential orders and behaviors. Of course, such more or less covert behavior by a subordinate official begs the issue of accountability. Your advice to Anonymous to go public but not resign seems to be a useful, extreme step in a normal presidency, but a normal presidency would also offer significant access by senior officials to the president along with the possibility that a president might adapt his views in light of advice. But this is not a normal presidency, and nothing Anonymous wrote is news to members of the Washington elite. We have no equivalent to a vote of no confidence to bring down an administration. It is virtually impossible to remove a president, even one as crazed as Trump. Consequently, I think under these conditions officials are obliged to maintain normalcy and reason in the conduct of government and think of the op-ed as just a report that could be written by a number of senior officials, all of whom feel an obligation to constrain craziness and maintain government. Might we call this administrators’ constitutional ethics?

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    1. One aspect of all this that confounds my thinking is that there are in fact a number of constitutional law scholars and their acolytes who do argue that the president does have “unlimited authority over his subordinates, authority that originates in popular election.” They don’t accept that this is erroneous thinking and they are convinced they have the consttutional text and history on their side. Furthermore, the debate about executive power in this regard is all over the map in scholarship, constitutional law, and history. That is why, in part, the strong form of the unitary presidency is acendant. It’s a simple, powerful argument made stronger by a Congress that has been a bunch of wimps for more than 50 years.

      I agree that we are in abnormal times; that’s why I advance my argument for the extreme action of the in-house resisters going public. Trying to maintain some semblance of normalcy is a mistake because it fools the resisters into thinking they have Trump’s proto-authoritarian state under control. They don’t. We need more, and more defiant, reisistance that invites scrutiny and thus accountability.

      All this said, the only thing I am really capable of offering is an effort to strengthen ethical theory. My idea, to be developed elsewhere, is not quite “constitutional” ethics for administrators, but what I will call “regime ethics” a la Jon Rohr’s “regime values,” which he never really developed much. Stay tuned . . .

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