Trump’s War Against His Own Attorneys

Former DOJ Supervisor Ellen Blain on why this Trump term is different—and a greater threat to a functioning government

By Ellen Blain

It’s no secret that Trump has gone to war against the Justice Department. His directive to the Southern District of New York (my former office) to drop all charges against Mayor Eric Adams—after he pardoned all 1,500 January 6 rioters—comes days after the administration fired career DOJ attorneys who were involved in those prosecutions; suggested to all federal employees (through Musk’s so-called “deferred resignation program”) that they should do something “more productive” with their lives; and characterized their work on behalf of the United States, in an email that the new Attorney General Pam Bondi sent to the entire Justice Department on her first day, as “shameful.”

Perhaps Trump doesn’t realize that these supposedly unproductive and shameful lawyers are the ones who must defend him.

This administration has decided to prioritize convicted criminals over the Department of Justice lawyers who prosecuted them—while simultaneously demanding that those very same lawyers defend the administration and swear loyalty to it. While DOJ’s criminal prosecutions get a lot of attention, sometimes we forget that DOJ also represents the United States, its agencies, and its employees in lawsuits when they are sued. So DOJ lawyers have dutifully fanned out across the country attempting to defend the more than 40 lawsuits that have been filed against the administration, all the while seeing friends, colleagues, and supervisors flee or get summarily fired.

Worse than having to bear insults while doing their jobs, DOJ lawyers also now risk being fired for refusing—or appearing to refuse—to make “arguments on behalf of the administration.” As she stated in one of her 14 memos issued hours after being sworn in, the Attorney General ordered that “any [Justice Department] attorney who… declines to sign a brief, refuses to advance good-faith arguments on behalf of the [Trump] administration, or otherwise delays or impedes the department’s mission will be subject to discipline and potentially termination.” Her reassurance that “no one who has acted with a righteous spirit and just intentions has any cause for concern” does little to calm any fears.

This demand strikes at the heart of the Justice Department, because she gets “the mission” of the Justice Department backwards. It is not to make arguments “on behalf of the administration,” it’s to make arguments consistent with the Constitution. And sometimes, like now, those two things conflict. And DOJ needs to be able to say that the Constitution should win.

DOJ lawyers, like all lawyers, must advise their clients about what actions are lawful (and likely to win in court) and what actions are not (and likely to lose in court). Given the power and scope of the federal government, that kind of advice can affect millions of people and it’s what makes government work. But now, if a DOJ attorney advises her client—the United States and its agencies—that a particular action is unlawful, she risks being seen as “refusing to make arguments on behalf of the administration.” So unlawful actions continue, and the only way they can be stopped is by a court order.

As we see now, courts struggle to keep up with the pace of Executive Branch actions because litigation is slow, and an Executive Order is immediate. Even though Trump’s decision to shutter USAID has been challenged in court, more than 10,000 jobs have already been lost.

DOJ attorneys argue on behalf of the Constitution and laws of the United States. Unlike in prior administrations, this administration seems poised to ignore basic and long-settled Constitutional principles, and administration lawyers must be able to say so.

Until just before the election, I was one of those lawyers.

As the Co-Chief of the Civil Rights Unit in the U.S. Attorney’s Office for the Southern District of New York, I lived through Trump 1. And throughout my 15 years in SDNY, serving under three presidential administrations and five U.S. Attorneys (two of whom were fired by Trump), my SDNY colleagues and I did our best to follow the law and the facts, in both defensive and affirmative cases, to—as the Constitution directs—“take Care that the Laws be faithfully executed.” We did so even when we may have personally disagreed with the Executive’s actions, and we tried to ensure that those actions followed the law. Because we, like every Justice Department attorney, swore an oath to uphold the Constitution and laws of the United States. We did not swear an oath to an administration, to political priorities, or to a president.

While Trump seeks to root out the deep state, his demands may ironically have had the effect of creating one where none existed. Many DOJ attorneys and staff who may have been tempted to take the purported (and likely illegal) “buy-out,” getting paid to “stay at home and relax or to travel to [a] dream destination,” have decided to stay—solely as a bulwark against Trump.

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Ellen Blain is a Former Co-Chief, Civil Rights Unit, United States Attorney's Office for the Southern District of New York and a Partner at Clarick Gueron Reisbaum.