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In this image made from a video, Preet Bharara, former U.S. attorney for the Southern District of New York, walks down a line of applauding well-wishers Monday in front of the New York office where he worked until he was fired by President Donald Trump over the weekend. (AP photo)
In this image made from a video, Preet Bharara, former U.S. attorney for the Southern District of New York, walks down a line of applauding well-wishers Monday in front of the New York office where he worked until he was fired by President Donald Trump over the weekend. (AP photo)

Bharara should have resigned, or explained himself

By Noah Feldman

When the boss asks you to resign, should you say yes or make him fire you?

In the executive branch of the federal government, there’s a strong tradition of stepping down, especially if you’re a political appointee of the other party.

Yet Preet Bharara, the U.S. Attorney for the Southern District of New York, made President Donald Trump fire him, as did Sally Yates, the acting attorney general who refused to defend Trump’s original executive order on immigration back in January.

Were they justified? And are liberals right to instinctively support officials who refuse to follow the tradition in the Trump administration?

The answer is that refusal to resign is only appropriate when there’s a principle involved that goes beyond ordinary partisan disagreement. In Yates’s case, there was: The Department of Justice hadn’t been asked to review the legality of the executive order she was being told to defend.

In Bharara’s case, his refusal to resign may have been justified if he had reason to think his firing was aimed at blocking an investigation. But the refusal wouldn’t be justified if he was simply frustrated that Trump told him he could stay on and then changed his mind later.

Bharara should clarify which it was. He can’t comment on investigations, of course. But he can signal that the request to resign was a matter of principle, not a point of personal privilege.

The distinction between resigning at the president’s request and making the president fire you may seem trivial. But it isn’t.

Agreeing to resign is an act of recognition of the president’s legitimate authority to choose personnel in jobs that are designated by law as political, rather than part of the civil service.

Refusing to resign is a challenge to that presidential authority. It should be reserved for situations where there is something demonstrably wrong with the president’s request.

Thus, if the president appointed you, then you should resign at his request unless the reason for the removal is unethical. Indeed, if you are taking an official action that is likely to go against the policy of the president who appointed you, there is a strong case that you should preemptively resign without waiting to be asked.

And if you are a holdover official from a previous administration, you should ordinarily be even quicker to offer your resignation when asked. The president not only has the authority to replace you, but almost certainly plans to do so.

The practice of keeping holdovers is valuable because it keeps the government running between administrations. Refusing to resign undercuts the holdover practice, which is bad for making transitions run smoothly. So holdover officials should only make the president fire them when there is a strong reason grounded in ethics.

It’s conceivable that Trump’s rather sudden resignation request to more than 40 holdover U.S. attorneys has an unethical dimension aimed specifically at Bharara. But if that’s the case, we don’t know what it is.

Sources close to Bharara have revealed that Trump tried to call Bharara before the resignation request was made public, and that Bharara refused to speak with him, citing ethical guidelines that prohibit the president from speaking directly to U.S. attorneys rather than using the chain of command that runs through the attorney general.

One possible interpretation is that Bharara believes Trump wanted to keep him on, as he initially told him he would some weeks ago, but planned to condition his retention on some implicit or explicit agreement.

If that suspicion were supported by some evidence, then Bharara would have been right to refuse to resign when asked to do so after declining to take Trump’s call. That would have been a subtle signal that he suspected Trump of unethically seeking to influence an investigation.

But if so, that sign is ultimately too subtle for public comprehension. Bharara is, as of this moment, subject to the reasonable critique that he was simply angry that Trump changed his mind about keeping him on.

And if that’s what happened, Trump might actually have been calling Bharara to explain his change of heart. Trump still shouldn’t have broken the chain of command to do it, and Bharara was right to decline the call. But the reversal would seem less arbitrary if Trump had a good reason.

Bharara was clearly willing to work for the Trump Department of Justice. If he wants his firing to be understood as more than an objection to the president’s change of heart, Bharara now needs to signal much more clearly that he reasonably feared interference or had other ethical objections to his firing. He doesn’t have to say what those are if they would compromise ongoing investigations.

In the end, the White House may simply have feared Bharara’s independence. A crossover political appointee has more credibility than a faithful party member; and that credibility can yield an independence that can scare the executive. The example of James Comey, director of the Federal Bureau of Investigation, comes to mind.

But if that’s the only reason Trump asked Bharara to resign, Bharara should have said yes. Liberals should remember that not every firing is a scandal — and sometimes, resignation is required as a matter of respect for the party system itself.

 

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer or the editorial board of Bloomberg LP or its owners.

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