The tweet was simple but promised a very complicated future:
“Any government official who refuses to execute Trump’s orders on grounds of illegality will receive free representation from me. & I’m good!” it read.
Good is not an idle boast. The author, Ian Samuel, 33, has clerked for Supreme Court Justice Antonin Scalia, worked for the Obama Department of Justice, and handled cybersecurity cases for a large corporate law firm and currently hosts the FirstMondays podcast about the Supreme Court while also teaching at Harvard Law School.
Frustrated by what he saw as a “clearly unconstitutional” executive order, he typed out his tweet on Friday night, plus a second one asking his 8,000-plus followers to “please retweet this. My own audience is rather small but I need lots of people to know this offer exists.”
Then he went out to dinner. By the time he checked next, he’d been retweeted nearly 7,000 times. By the end of the weekend, he’d compiled a list of nearly 100 other lawyers, law students and “people with no legal skills who want to help anyway, like one former secretary who offered to do any filing or stapling we needed.”
He had also heard from some civil servants who might need to take him up on his offer.
Perhaps it was his own time spent in government, he said in an interview with Yahoo News, but when he read of the new immigration ban he immediately thought of the workers who would be needed to implement it.
“No government policy is self-executing,” he said in an interview, describing his thinking before posting his tweet. “The White House can command whatever they want, but it requires tremendous cooperation from the workers.”
And those workers, he says, “aren’t under any obligation to break the law.” And, he contends, the policy announced Friday night to bar entry to citizens of seven largely Muslim nations “is not only unwise, it also clearly breaks the law.”
Not all of the response to his tweet was positive. Several people angrily accused him of acting illegally himself. “They said next time I am up at Harvard, I’m going to have the police arrest you,” one said. “You are encouraging civil disobedience and anarchy.”
Fellow law professors who volunteered to help with the growing project stress that the group is not advocating anarchy or encouraging civil servants not to do their jobs.
“We are not asking people to do things as much as we are saying, ‘If you do this out of conscience we will defend you,” says Dan Epps, an associate professor of law at the Washington University School of Law and a co-host of the FirstMondays podcast, who met Samuel when he too clerked at the Supreme Court (Epps worked for Justice Anthony Kennedy).
And there is more to defend them from than just the threat of punishment from above, notes Leah Litman, assistant professor of law at the University of California at Irvine, who also clerked for Kennedy. “Simply being asked to carry out an unlawful order puts government employees in jeopardy. If they do so, then they are open to lawsuits down the road by those who their actions have hurt.”
Their hope, Samuel says, is that few employees will actually have to make the choice to enforce rules they think are illegal. “The ideal situation in my view is that no one ever needs the help we’re offering, because if you have a substantial number of, say, Customs and Border patrol agents who say, ‘We’re not going to do this,’ the government would back off,” he says.
But they agree it is more likely that instead there will be more orders, affecting more employees, from more parts of government.
“It won’t just be the travel ban,” Litman says. “There may be other illegal orders related to other things coming out of this administration.”
They stress that they cannot promise to win the cases they take. While the Merit Systems Protections Board rules specifically protect the jobs of civil servants who refuse to enforce illegal acts, there is not a lot of case law on the details, because it hasn’t come up often in recent decades. “No one knows what any particular judge will do in a particular case,” Litman says.
But they do promise to take the case pro bono.
“We are not saying, ‘Go do this,’” Epps says. “We are saying, ‘If you do this, we will fight for you.’”
Agreed Samuel: “What it means is we will put our money where our mouth is. There are so many of us out there ready to do something. A lot of legal energy waiting to be unleashed and unlocked.”
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