The Census Case Shows Why We Need a Defender General

Noel Francisco.
Noel Francisco attends his Senate Judiciary Committee confirmation hearing on Capitol Hill in D.C. on May 10, 2017.
Mark Wilson/Getty Images

It’s been a rough couple of weeks for Department of Justice lawyers representing the Trump administration. Last week, career DOJ attorney Sarah Fabian came under intense criticism for an argument in which she equivocated when federal appellate judges asked her whether it would be “safe and sanitary” for the government to deny detained migrant children access to toothbrushes, soap, and blankets. And on Thursday, citing evidence that the Trump administration “contrived” its explanations to courts, the Supreme Court largely upheld a district court’s decision to block a citizenship question on the 2020 census. This opinion is a powerful, though tacit, rebuke of the DOJ attorneys who failed to acknowledge that their clients’ proffered rationale for adding the citizenship question—enforcing the Voting Rights Act—was pretextual. Essentially, the government lied about why it was taking a certain action in the census case, and the government’s attorneys failed to acknowledge those lies to the Supreme Court. This is not what our country’s top government lawyers should be doing.

I’ve litigated against Fabian and respect her public service, so I share the dismay that so many have expressed about her “safe and sanitary” argument. But the crucial lesson of the DOJ’s recent actions isn’t that we should be disappointed in a particular DOJ lawyer, or even Solicitor General Noel Francisco, who argued the government’s position in the census case. It’s that DOJ lawyers aren’t going to save us. As the census case shows, there are serious and ongoing institutional problems with the DOJ’s defense of Trump administration policies. These problems demand an institutional solution—one that will empower government lawyers to stand up for what’s right.

Part of the solution should be to create a new legal office—a defender general—to represent the interests of people subjected to government incarceration and detention, and to push back against faulty legal arguments by government attorneys that advance the president’s political interests.

Let’s start with the DOJ. It has spent two-plus years utterly failing to serve as a bulwark against the Trump administration’s wanton cruelty. Sadly, we now know that, no matter what cruel policies Trump undertakes, skilled lawyers will not only take prestigious political jobs like solicitor general and attorney general, but use those jobs to paper over the Trump administration’s discriminatory intent.

For example, although in theory the solicitor general’s office has a practice of “confessing error” when it believes the government should lose a case, Francisco has not seen fit to concede the illegality of any Trump administration policy. Not the Muslim ban. Not the ban on transgender service personnel. Not family separation (where an appeal has been held in abeyance following a district court ruling against the practice). And not the citizenship question, even when confronted with what the Supreme Court just called “an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process.”

It’s the end of responsible government as we know it, and the DOJ feels fine.

Career DOJ lawyers like Fabian can’t be expected to fix what those in leadership are breaking. These lawyers are in a difficult situation because their political clients and bosses often direct the positions they take in court. If they stay in their jobs, their legal skills might be exploited to defend a cruel practice or launder Trump’s discriminatory intent. If they quit in protest, they will inevitably be replaced by lawyers who are less troubled by Trump’s actions.

Indeed, as a civil rights lawyer representing immigrants against the Trump administration, I’ve been frustrated by the tactics and arguments that some career DOJ lawyers have deployed to keep my clients from the justice they deserve. But I don’t think the career DOJ lawyers are calling the shots.

To protect the rule of law, and to save the legal profession from being debased by the next Trump, we need to look beyond individual attorneys and toward the health of our institutions.

Here’s where the Office of the Defender General would come in. The concept of a defender general has been floated in legal circles as a means of improving representation for indigent criminal defendants. Consistent with these aims, Valparaiso University Law School professor Andrea Lyon has proposed that a defender general could serve as a “voice at the policy table for the accused, incarcerated and paroled.” And Sen. Cory Booker has introduced legislation that would create a “Defender Office for Supreme Court Advocacy” to help criminal defendants in the U.S. Supreme Court and state courts of last resort.

The events of the Trump era point to another reason to create a defender general’s office: the need to counteract the DOJ during times of moral rot.

A defender general’s office could serve precisely this function if it were afforded some independence—Booker’s bill would make it a nonprofit corporation—and if its mission were understood to go beyond criminal defense. We need a government-sponsored institution whose lawyers will stand up in court, and stand athwart DOJ lawyers, to articulate our country’s interests in the liberty of people subjected to government incarceration and detention, from prisons and jails to immigration detention.

Properly empowered, a defender general could pressure the DOJ to make more responsible legal arguments, and then publicly and loudly call out the DOJ—within government and in court—when it falls short. Would DOJ leaders have sent a career lawyer to quibble with federal judges about soap and blankets for detained kids if they had understood that a prestigious government-funded law office was prepared to tell the court that the DOJ’s position was meritless?

Another virtue of creating a defender general office is that it would generate alumni who could speak out in public when the government oversteps. A weird feature of the Trump era has been that so many “resistance” heroes are former prosecutors. This is partly because media outlets favor people who have been powerful lawyers, and there are almost no powerful government law jobs devoted to criminal defense or civil rights. As a result, the voices of lawyers who have devoted their careers to freeing people, instead of advancing reasons to keep them locked up, tend to be disproportionately drowned out, not only in government but in the public square.

None of this means that a quasi-governmental defender general could easily halt the Department of Justice’s dismaying slide toward defending the indefensible. But it’s clear that the remedy for what ails the DOJ must include institutional reform of some kind. And if the defender general can’t protect the rule of law, then maybe, by publicly confronting the failure of DOJ lawyering, she can avenge it.

The author is legal director of the ACLU of Massachusetts; the views expressed are his own.