Serving Law or Politics: How Government Lawyers Navigate a Trump Legal Landscape

• In Event: Donald J. Trump and the Law

Abstract

Politically appointed government lawyers operate in a conflicted environment. They owe their position to the president who appointed them and who can remove them at will but they are also employees who have a responsibility to the government for which they work and that pays their salaries. The two positions, White House Counsel and Solicitor General, are different in that the Counsel is a White House staff member who gives a mix of informal legal and political advice to the president, while the Solicitor General is a Senate-confirmed position with a long institutional history in the Justice Department as the official lawyer for the government in federal courts.

Serving in the Trump administration, Don McGahn as Counsel and Noel Francisco as Solicitor General have had to navigate their respective positions under extraordinary circumstances during an unconventional presidency. McGahn was the lawyer for Trump in the campaign, the transition, and the White House until October 2018: his challenge was to advise a president with an unprecedented lack of government experience or knowledge. Francisco’s time as Solicitor General has been marked by the following patterns of behavior, distinctive either because they are unique to the Trump presidency or because they have occurred with atypical frequency during this administration: (1) generating carefully crafted legal arguments in briefs and at court hearings, only to contend with utterings by the president that contradict those official legal positions; (2) requesting expedited review of cases at the Supreme Court; and (3) reversing the government’s legal position from prior filings in the same case. Both McGahn and Francisco had to adapt the traditional roles of their offices to accommodate an untraditional president: this paper will examine how they have done this and will evaluate the extent to which they have – or have not - been successful.

Author

• Nancy Kassop, SUNY New Paltz