Never Means Never

Over the past eight years, I have written several dozen pieces explaining why Donald Trump is unqualified to be president and why I became a Never-Trump advocate. That political view rarely, if ever, intersected with my professional activities as a lawyer, where I have worked at the intersection of cybersecurity and privacy law and policy. Sadly, with the election, that will all now change.

In August 2023, I was appointed as a special advocate to the Data Protection Review Court. The position is part-time and designated as a Special Government Employee (SGE); I get paid only for the work that I do.

The new position was the result of an effort by the Biden administration to resolve aspects of a long-standing dispute that had existed for 20 years between the United States and the European Union regarding U.S. intelligence collection activities and European concepts of adequate privacy protection. In part, the resolution involved the creation of a new administrative court housed in the Department of Justice: the Data Protection Review Court. The court currently has eight judges (several of whom are retired Article III jurists) and is authorized to hear and adjudicate in a binding manner complaints lodged by Europeans (and potentially others) suggesting that U.S. intelligence agencies may have violated certain self-imposed limitations.

Because most of the evidence the court will hear involves highly classified programs (which is to say, information that cannot be shared with non-American complainants), the administration also created the position of special advocate, a group of American lawyers with top secret clearance who serve as amici to the court to argue the complainant’s viewpoint.

I was honored to be asked to be a special advocate and gladly accepted the appointment.

Today, however, I have resigned.

Why?

Because “never” means “never.” It means never working for an adjudicated sexual abuser. It means never working for a convicted fraudster who robs children’s charities. It means never lending credence to an insurrectionist. And it means never voluntarily having a boss who is a racist, misogynistic, anti-Semitic authoritarian who openly promises to use the Department of Justice (where the court is housed) and the intelligence community (whose activities the court evaluates) for his own political purposes. 

If, as I do, one thinks that Trump is a fundamental threat to America’s essential democratic institutions, one cannot, in good conscience, offer any aid and comfort to the prospect.

It’s a challenging question, of course. There is a nonfrivolous argument that people of goodwill and talent (however modest my talents might be) ought to serve their country. And that mostly rings true (I always admired Ainsley Hayes on the “West Wing” for that reason as well as real-world patriots like William Cohen and Norman Mineta, who served across party lines). It especially applies to those in the civil service who have regular jobs that they go to every day.

But as an SGE, I’m a voluntary part-time employee. More to the point, I serve at the discretion of the attorney general and thus, unlike civil servants, at the pleasure of the president. Serving Trump and whoever is confirmed as attorney general (if they would even let me continue, given my past) would be willingly associating myself with an authoritarian whom I cannot and should not enable. Ten years from now, I do not want to look back and say, even for a second, that “I worked for Trump.” And so, I will leave, rather than stain my reputation (whatever it may be after 40 years of public service) with even a scintilla of association with the man.

In making this announcement publicly, I want to make clear that it has absolutely nothing to do with the Data Protection Review Court, the Department of Justice, or the overall project of coordinating privacy concerns across the Atlantic. The administration of the court by the Justice Department has been exemplary, and the court’s work on its own foundational requirements has been thoughtful and independent. The existence of a redress mechanism is an integral part of the Data Privacy Framework and thus a critical piece of the flow of transatlantic data. Nothing in my decision should be taken as criticism of the court or of the overall intent behind the privacy framework.

Though the work I would have done would, in that context, be important as a matter of policy, I also do not want to make too much of my role. I am not a terribly critical cog in the federal machinery. Though the court has been in place for over a year, all of our work so far has been ministerial, drafting rules of procedure and the like. There has yet to be a substantive appeal heard. And I can certainly be replaced by other qualified people. Thus, my decision to leave will have little practical impact on the nation.

And so, from a Trumpist perspective, one might snort, “Big deal! A no-account Never Trumper quits a nonpaying job. Who cares?”

There is some small justice to that perspective.