When the rule of law finally sucks in its last gasp in America, it may well come not by way of an authoritarian clampdown on free speech or a refusal to abide by a court order. No, when historians someday attempt to explain what happened to the rule of law in America in the first quarter of the 21st century, they may well find themselves explaining that it died in the most American way imaginable: by way of the cowardly, lawyerly memo to file—death by a thousand cover-your-asses.
What is the lawyerly memo to file? Look to this New York Times report, out last week:
President Trump ordered his chief of staff to grant his son-in-law and senior adviser, Jared Kushner, a top-secret security clearance last year, overruling concerns flagged by intelligence officials and the White House’s top lawyer, four people briefed on the matter said.
Mr. Trump’s decision in May so troubled senior administration officials that at least one, the White House chief of staff at the time, John F. Kelly, wrote a contemporaneous internal memo about how he had been “ordered” to give Mr. Kushner the top-secret clearance.
The White House counsel at the time, Donald F. McGahn II, also wrote an internal memo outlining the concerns that had been raised about Mr. Kushner—including by the C.I.A.—and how Mr. McGahn had recommended that he not be given a top-secret clearance.
As the Times reports, then chief of staff John Kelly knew full well that affording a top-secret security clearance to Jared Kushner posed a national security risk. President Donald Trump evidently told him to clear Kushner anyhow. Then White House counsel Don McGahn also advised against that clearance, and was also overruled by the president. And so evidently, when Kushner was cleared over their own misgivings, the step they decided to take was to pop a little note in the file, flagging their objections in secret. In the event they weren’t already among the most depressing actors in this whole sad saga, they’ve now cemented themselves as such. Not brave enough to do or say anything that would reflect the fact that they believed Kushner posed a material risk to the country, they were content to simply leave a little “I was only following orders” note for posterity. Tuesday: dentist; Wednesday: dry cleaning; Thursday: endanger entire intelligence apparatus.
McGahn actually gets extra style points: Last week, he swanned back to his old law firm, Jones Day. On the way he offered up the smug statement that “I enjoy the practice of law, and I look forward to coming back to Jones Day. I’m going to practice law. No paid corporate speeches and no books, unlike some others who have worked in the White House.” You decide which is worse: the people who worked for the White House and left to write books, or the people who worked for the White House, approved alarming decisions, and then went back to their normal lives after leaving a note in the file.
The decision to write a note-to-file has become the lawyerly response to Trump’s lawlessness. It is largely a meaningless gesture. As John Oliver put it on Sunday’s Last Week Tonight: “The fuck is Trump supposed to do with a memo raising concerns?! Read it? A memo? With what? His eyes? For what possible reason? So he can know stuff? To what end? So he can do stuff? Why?! So he can get more memos about the stuff he’s doing? Nice try, memos!”
It also is not an entirely new phenomenon—we know that James Comey, when he was FBI director, took copious, detailed contemporaneous notes of his interactions with the unpredictable new president. He did that in part because note-taking is baked deep into the FBI’s culture, and in part because he was attempting to build a record, in the event that anything ever happened (surprise: it did). As he later testified in a Senate hearing, he wrote those memos because he was refusing to comply with Trump’s directives and was concerned the president might lie about the nature of their meetings. Former Deputy Director Andrew McCabe also took notes of his interactions with the president, for many of the same reasons.
The reason for the note-taking is obvious: The president doesn’t understand how government is supposed to work, nor does he have much respect for the rule of law. This makes everyone who is accustomed to rules and laws feel anxious. So government workers who reside someplace down the chain, presumably also aware of this problem, are also reacting by … making notes for their files. As Politico reported this week:
Numerous career staffers decided to document everything they could, what became known as “putting it in the record.” That often meant putting certain ideas and opinions in emails or copying other agencies on communications. Many staffers knew that by including the agencies, the information would more likely be subject to the Freedom of Information Act and could one day see the light of day or even land in history books. Some admit they hoped that people in the agencies would leak the information to reporters. And many acknowledge they wanted a record, somewhere, of themselves objecting to policies they thought could be illegal.
It is alternately sad and hopeful that career staffers are turning to note-taking as a means of countering what is spewing out of the White House. For these staffers, the action has the potential to pay off: Both Comey and McCabe lost their jobs because they didn’t always follow orders. But for Kelly and McGahn, both political appointees, the move makes significantly less sense. They seem to have kept notes to exonerate themselves after following orders against their better judgment (and then departed the White House without letting anyone know). That Kelly and McGahn seemingly each acceded to something they believed was profoundly, existentially dangerous, and then somehow convinced themselves they were patriots for privately noting their apprehension, is next-level self-justification. No, gentlemen, you aren’t off the hook. You sold out the country to Jared, and then kept the receipts in case they turn out to be get-out-of-jail-free cards.
If there is anything sadder than the anonymous op-ed as Trump resistance, the anodyne CYA to the file is surely it. It’s another way of shirking personal or public responsibility and hiding it under the veil of lawyerly professionalism. For the political staffers working in Trump’s White House, here is a lawyerly reminder: If your client is out of control and liable to hurt someone, you have a duty to act. And if your client is out of control and liable to hurt someone and also imperiling national security, you have a duty to act. Waiting around to participate in the someday Ken Burns movie isn’t going to cut it. The rule of law will continue to lose all meaning in Trump’s America, not just because of cowardice and collusion, but because far too many people who insisted they were just doing their jobs let themselves off the hook.
