I promise that eventually I’ll go back to blogging about things other than Trump, but that seems to be the most important challenge facing the anticorruption community right now. Also, I wanted to contemplate a question that a friend and recent law school graduate (who is currently working for the US government, and so cannot be identified by name) put to me in response to the “cry of despair” I posted in the immediate aftermath of the election. This young lawyer asks:
What can people do in the face of all this? Is there anything young lawyers who care about anticorruption policy can do? If we can expect a drop in enforcement and weakening of the FCPA, where can people concentrate their efforts?
This is a great set of questions, and I wish I had good answers. I don’t, but in the interests of contributing to these important conversations, let me offer a few preliminary thoughts (which are probably worth approximately what you’ve paid for them):
- First, a smaller but nonetheless important point: Despite my doom-and-gloom prognostications, it’s by no means a sure thing that the FCPA enforcement will be significantly weakened. It might be, and I confess I still fear it will be, but as I noted in my post a couple weeks back, a number of smart commentators have offered plausible reasons why this worrisome prediction might not come to pass. Even pessimists like me don’t think it will happen quickly. So if you are interested in continuing to work for the US government in FCPA enforcement, or in some similar area that presumes a robust FCPA, don’t abandon hope too quickly.
- Second, part of what we all can do is to advocate for these issues, and to resist attempts to do things like curb FCPA enforcement, shutter or undermine the Kleptocracy Initiative, etc. It’s easy to say things like that in very broad terms, and much harder to determine what, exactly, we can do. I haven’t really figured that out. I guess at least part of it is doing what we can (whatever our day job) to follow these issues, talk to friends and colleagues, write about them when we have an outlet, be active in our professional associations (the ABA, for example) and so forth.
- Third, and related to the above point, some have reasonably suggested that a Trump Administration (and/or a Republican Congress) might be open to at least some anticorruption initiatives, and that it might make sense to try to identify what those are and press in those areas. I confess that I’m a bit more pessimistic here than others are. I doubt, for example, that Trump’s “drain the swamp” rhetoric will translate into any meaningful push for campaign finance reform, and the Republican Congress would block such initiatives in any event. My personal view is that the anticorruption community is going to be mainly playing defense for the next four years. But that doesn’t mean it’s not worthwhile for smart, engaged people who care about these issues to try to identify political windows of opportunity.
- A larger issue that many people—including but not limited to talented young lawyers like my friend—will need to face over the next four years is whether to work for the Trump Administration, if they have the opportunity to do so. This will be a dilemma for conservatives as much as for liberals—indeed, it’s likely to be a bigger issue for conservatives, who will have more opportunities for high-level jobs in the administration if they choose to pursue them (though there are still many parts of the government where people serve administrations of a different political party). It’s more of a dilemma than it usually is because the objections to a Trump Administration are not merely the usual left-right political/partisan fights over policy and general governing philosophy. Trump is abnormal—in his xenophobia, his misogyny, his ignorance, his contempt for basic norms of American democracy, and his demagoguery. We must resist the temptation to normalize him, or his Administration. The rhinoceros remains a rhinoceros, and we can’t let ourselves stop noticing. But that doesn’t necessarily mean that one shouldn’t be willing to work for the administration. Indeed, as I suggested in my last post, one of the most important potential moderating restraints is the bureaucracy—both the professional civil service and those political appointees who would resist the worst impulses of a President Trump and his chief lackeys. Everyone who takes an important government position in the next four years—as a prosecutor, for example, or as an agency lawyer—has the opportunity and the obligation to discharge that position with integrity, and in the service of the United States—and to find (lawful) ways to act as a buffer between the White House and the people whose lives are affected by US government policy. That said, it’s far too easy and comfortable to rationalize complicity with evil by telling oneself that one can effect more change from the inside, and that someone else in the job would likely be worse. So those who do take jobs in the US government will need to constantly ask themselves whether they are comfortable with what they are doing, and be willing to walk away if not.
- One more thing I might say in answer to my friend’s question about where young lawyers (and others) who care about anticorruption can concentrate their efforts: Remember, even for Americans, the US federal government isn’t the only game in town. There are lots of other institutions and organizations where one can put one’s talents to work fighting corruption. Think about state and local governments (our only hope, over the next four years, for meaningful progress of any kind on many pressing issues). Think about international organizations like the World Bank, IMF, and UN, as well as advocacy groups and other NGOs, etc. Think about private sector firms, many of which genuinely look to their lawyers for advice on how to do well while doing good. Many of the professional opportunities for young US lawyers and other professionals who care about fighting corruption are still there, even if it turns out the US federal government is not as viable an option as it once was or would have been under a Clinton Administration.
- Finally, and this probably goes without saying, stay angry, stay politically active, and get ready to mobilize for the 2018 mid-term elections (though the odds of much progress there are slim given the electoral map) and the 2020 presidential election.
I fear that none of this really provides a good answer to my friend’s question, but I hope that it helps move the conversation along, and I invite others with thoughts on this topic to contribute in the comments section.