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Trump on NYT op-ed: You could call it treason

President Donald Trump said that The New York Times' decision to publish an op-ed from a senior administration official describing an internal resistance to the President could be called "treason," in an interview that is slated to be aired on Fox News.

Posted: Sep 7, 2018 11:30 PM
Updated: Sep 7, 2018 11:33 PM

As the first (and, so far, last) "ethics czar" to advise a President and other senior officials on steering the moral helm of a new administration, my job included helping the White House navigate the question: What is the right thing to do? When the answer was obvious, my services were not needed. I was there for the gut-wrenching calls, when we were caught between the Scylla and Charybdis of law and ethics in foggy conditions.

The decision of an unnamed senior administration official (I'll call this person "Anonymous") to pen an op-ed in The New York Times publicly disclosing the views of some White House officials on President Donald Trump's capabilities presents such a set of agonizing decisions.

Having wrestled with the dueling mandates of legality and morality, both in and out of government, I believe the author is doing the ethical thing in resisting Trump from within -- and in writing about it openly.

The tension between following orders and following one's conscience is one I have long studied. In my new book, "The Last Palace," I write about four individuals who dwelled before me in the house I occupied as US ambassador in Prague -- and who searched for the right thing to do as they found themselves at the pivot points of democracy over the past century.

They each grappled with the same choices as Anonymous at one point or another, from the Czechoslovak democracy advocate who built the place to the Wehrmacht officer who supplanted him; from the American ambassador who fought to prevent the Cold War to the one who helped end it four decades later.

Perhaps the most acute example was the German general who occupied the palace during World War II, Rudolf Toussaint. At the end of the war he discarded direct orders to destroy Prague when it was the site of a civilian revolt. "Das nest must brennen," he was told: "The nest must burn." Instead, he turned on the SS and saved the precious city and its people from annihilation.

I am certainly not comparing Trump to the Nazi regime (although in his own entry-level, illiberal way, he has adopted many of the themes of autocracy). But the example of the general illustrates a principle that surely even the critics of Anonymous must concede: When orders conflict with morality, sometimes the right thing to do is the right thing to do.

And, unlike Gen. Toussaint, who contravened German law by defying orders, Anonymous' acts do not actually appear to be illegal. I am aware of no statute or regulation that is violated here. The suggestions that have been put forward by the President in his tweets, such as that this was treason, do not meet the requisite legal elements of that offense. For example, even the most severe critics of Anonymous cannot seriously contend that his or her acts constitute "levying war against the United States." Nor does the editorial disclose classified information.

If it is true that Anonymous is a senior government official, he or she will have sworn the solemn oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

But having taken that oath myself, worked to live up to it in my service in the White House and then abroad as ambassador, and advised hundreds of senior government officials -- from the President on down -- on applying that commitment, it seems to me that Anonymous is honoring it. It is, after all, not a commitment made to a person -- not even the President. It is, instead, a commitment made to the Constitution, and Anonymous' actions, in my view, "support and defend the Constitution" against the daily predations of this President.

The principal counterargument -- and it is an important one -- is that this insubordination subverts democracy and the rule of law because it undermines a duly-elected president. Some supporters and critics of Trump, alike, see the writer as part of a bureaucratic coup by the "steady state." If everyone does what they think right, rather than follow orders, how can a government function?

Never mind the irony, given that Trump constantly transgresses equally (or more) important norms. The op-ed, too, admits a violation of a norm, and a critical one at that, under the usual circumstances: following the chain of command.

But these are not the usual circumstances. We have an unstable President, as indicated by the contents of the op-ed, the new Bob Woodward book, and, indeed, the things we can see with our own eyes on Twitter. In my view, he regularly transgresses not just norms but laws and the Constitution (I have asserted as much, for example, in legal actions).

Under these circumstances, internal subversion is a good.

We should view the actions of Anonymous through the lens of civil disobedience. At some point, each of us must answer to our conscience. History is kind to those who did so around the world in the last century, including in the United States, such as those who broke the law to fight for civil rights. So, too, it will be to Anonymous.

Yes, on the classical theory of civil disobedience, you are supposed to act openly and take your punishment. But as a hero of the field, Daniel Ellsberg, has argued in a different context, that paradigm must be adapted in this day and age because the draconian risk to the disobedient has grown too large. As an ethicist, I think Anonymous' judgment to conceal his or her identity was the right one under these circumstances, including because it allows him or her to continue to function as a safety net in government.

Some argue to the contrary, suggesting that secretly resisting might be OK but that by so publicly disclosing his or her actions, Anonymous has risked exposing him or herself and others in the same boat -- and capsizing their entire salvage project. But as a lifelong advocate for transparency, I tend to favor openness. I think telling the American people about what is going on here is a healthy thing and consistent with democracy.

When I advocate such radical transparency, I often hear similar arguments that too much openness about an initiative will lead to its demise; even some highly ethical colleagues in the Obama administration occasionally argued this.

But President Barack Obama almost always chose the path of transparency. Despite some folks' fears about the consequences, those decisions, such as releasing the White House visitor records, typically turned out to be a boon to governance (too bad Trump canceled that release policy).

In the case of Anonymous, I doubt Trump will be organized enough to seriously retaliate; he cannot fire the entire federal workforce. His rage will soon fade, and he will be on to the next shiny object, while Anonymous and colleagues continue to support and defend the Constitution.

I do hope that Anonymous will take one final lesson from the history of civil disobedience, however. Like Ellsberg, who began in stealth but eventually stepped forward, there will eventually be a time when Trump is gone, and Anonymous will be able to step up. That will be in the finest tradition of ethics, transparency and the rule of law, alike. If there are consequences, I encourage Anonymous to come forward and face them with the same courage that he or she has exhibited so far.

When that happens, I will be the first to defend this American hero.

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