Vital Interests: Ed, thanks for joining us today on the Vital Interests forum to discuss the role of lawyers in politically polarized times. The issue of legal ethics and professional responsibility became prominent during the Trump administration. The Watergate scandal was also a time when legal ethics became part of the discussion as many of the people involved in the break in and coverup were lawyers. As a result there was a call to add a required course on legal ethics to the law school curriculum and to continuing professional legal education. Can you provide some background on this perceived need to bring ethics into the legal profession?

Ed Rubin: I think there are two factors that are operating. The first is the general problem that government is a hierarchy, a command structure that expresses or embodies power. The notion is that people are supposed to follow orders, that they're supposed to carry out the will of whoever is in charge, whether that's a ruler who exercises divine right as in the old days or one who is elected by the people as in modern times. There's always a tension between that hierarchical structure and any sense of ethics that would counteract the exercise of power.

For a while, in the middle of the 20th century, the dominant theory was positivism. This derives from Hans Kelsen, who considered law as simply a mechanism and thus separate from morality. Positivism became problematic in the wake of the Nazi regime with the Nuremberg trials and the with Eichmann's trial in Jerusalem. What happened was that the defendants asserted a positivist view of law.  They claimed that their actions were justified because they were following the commands of the Führer, who had been legally declared to be the head of the government.

In reaction to the horror of this, people began to think about what kind of normative structure was required and at what point you were no longer entitled to justify your actions on the basis of the fact that you've been given an order. That's an overarching problem. With respect to lawyers in particular, there is a norm of professionalism that's supposed to operate. You might think that lawyers would be particularly resistant to immoral orders because, in addition to the general moral norm, they are supposed to take account of ethical considerations as a particular professional norm.  A lawyer is supposed to follow legal rules -- not only the legal rules that give authority to the leader, but also the legal rules that are derived from the general structure of society. 

The problem there is that there's a countervailing principle of legal ethics, which is that you're supposed to be the loyal agent of your client. As a lawyer you’re supposed to do what the client asks you to do. Everyone is entitled to representation. Everyone is entitled to have somebody speak for them, to represent them in the legal arena.  That leads to an opposite view, that the lawyer is a neutral instrument. This applies to lawyers in government as well. The role of lawyers in government is very often much more instrumental and not one of resisting on the basis of either professional knowledge or general ethics.

VI: The problem of lawyers following the dictates of rulers, is that in a democracy we have other values and principles that we want protected. What is the interaction of lawyers with basic democratic principles?

Ed Rubin: Well, again, yes. Absolutely. This dichotomy pervades democracy. In a democracy, on the one hand, we're supposed to be governed by principles of law, principles of fair procedure and so on. On the other hand, we attach an enormous amount of legitimacy to the fact that someone's been elected. The people are sovereign, and being sovereign choose leaders to govern them. Everybody recognizes that self-government is a sort of metaphor. You can't actually govern yourself. The notion of popular sovereignty translates into the idea that people choose their leaders and then these leaders act with the legitimacy and the moral force of democratic government.

That then creates a tension with the idea that democracy is based on values that can be used to resist government demands. Of course, that's what we see in the Supreme Court. On the one hand, the Supreme Court is supposed to stand for human rights and the structural principles that we regard essential to our democratic system. On the other hand, because it's a part of a system of majoritarian rule, there's skepticism attached to striking down congressional acts. This is an argument against judicial activism, that courts should not strike things down that were enacted by the people and represent the will of the people as expressed by their representatives.

VI: To get back to the Watergate scenario, why was it decided at that time of that scandal, that a code of ethics needed to be part of legal education, that law students had to be taught specific ethical principles? Didn't the American Bar Association (ABA) also issue a new set of guidelines that articulated the norms of ethical legal practice and professional responsibility?

Ed Rubin: I think it was a reaction to the fact that there had been a problem.There's conflict between hierarchical command as legitimated by democracy and the commitment to human rights that would counteract majoritarian government in general, or make the lawyer something other than a mere tool of the client. In other words, these things are always in a dynamic tension.

When you get a dramatic event like Watergate, it brings to people's minds the fact that the balance has shifted too far one way and there has to be some action taken to counteract that. I think law schools are now reacting to George Floyd’s death and Black Lives Matter protests to introduce more social justice programs. In the wake of Watergate, they reacted to what they perceived to be the problem, which was the lack of awareness of legal ethics. This led to an effort to respond by making legal ethics a required course, and by making a legal ethics exam an element of the qualification to be a member of the bar.

VI: Let’s look at the organization of the legal profession in the United States. The American Bar Association is a national entity that provides guidance to the legal profession and establishes norms. But isn’t it the individual state bars that really regulate who gets admitted to the practice of law through state bar examinations and professional standards?

Ed Rubin: I think lawyers are generally aware of the American Bar Association and its general norms. Throughout the United States the structure of federalism is that, on the one hand, states have separate powers, something that we're seeing now with state electoral laws. On the other hand, there are two forces operating at least. One is a functionalist force that states have to coordinate with each other. Even though some states try to exclude lawyers from moving in, lawyers have to be able to practice across state boundaries because business occurs across state boundaries. Then there's the fact that we are one culture and that people tend to model themselves on a national pattern. Sociologists refer to this as institutional isomorphism. That is to say, institutions at a secondary level tend to acquire the structure of the institutions at the national level. That's the most obvious in the case of state governments being structured almost exactly the way the federal government is structured.

VI: So monitoring the practice of either private or public lawyers and possibility of censure for malpractice or bad behavior has to be initiated by a state bar association?

Ed Rubin: Yes. I should mention another criticism of the ethics procedures in the state bar, which is they're being used against outliers and not as anything that would exercise real discipline over the majority of people practicing law in their state. The typical ethics case, the typical disbarment case, involves a lawyer who is actually engaged in malfeasance, usually as a result of substance abuse. State bars have been fairly good about policing this sort of thing particularly when clients complain that the lawyer is missing deadlines or making mistakes or things like that. More general ethical standards tend to be much more difficult to enforce either at the state level or at the general level.

The federal government is supposed to have an ethics adviser. I know that for seven years during the George W. Bush administration there was no ethics adviser appointed. My understanding is that Trump never appointed an ethics adviser at all.

VI: What about judges and courts? Theoretically judges are supposed to be experienced legal practitioners and non-partisan but during the Trump administration judges were appointed who had demonstrated certain political leanings and were ranked by the ABA as not qualified.

Ed Rubin: The appointment of judges is another one of the real dilemmas of modern government. I would say it's one of the unsolved and challenging problems of our entire system. It involves the nature of political appointments. The political theorist Robert Dahl, who spent a lot of time explicating and exploring the actual mechanics of democracy, famously declared: “Are there any controls on the appointment power?  What are the norms that underlie them?” He has a definition of democracy that's very mechanical. Then he stepped back and said: “Look, all of this depends on norms. It depends on a societal commitment to basic principles. Without that it won't work.” During the Trump administration we've seen what are considered established democratic norms severely tested, more severely perhaps at any time since the Civil War. One of the norms is that, while you're entitled to appoint people who represent your general political orientation, there are also norms of competence, fairness and neutrality.

Traffic safety is an area that I've devoted particular attention to. President Johnson, who was a great proponent of the highway safety law that led to the National Highway Traffic Safety Administration (NHTSA), appointed a very distinguished automobile safety expert as the first head of NHTSA, William Haddon. When Nixon campaigned on a position favoring American business and expressing concern about regulation, he disparaged Ralph Nader as someone who was trying to destroy the American free enterprise system. But when it came time to appoint the head of NHTSA, Nixon appointed someone who was as distinguished in auto safety as Haddon, a man named Douglas Toms. Obviously, later on Watergate came along, but for all that political cynicism and Manichaean view of the world, Nixon also had a notion that you appoint competent people who believe in the mission of the agency they head. 

I think this is something that we saw tested to some extent under the second Bush administration, when he started appointing people who disbelieved in the mission of the agency and were there to derail or destroy the agency rather than to carry out its purpose. Then of course, with Trump, it went way out of control. Trump was someone who had no respect for American norms. When it came time to make appointments his sole criteria was who was loyal to him, who would carry out the policies that would get him reelected, and who would cause the most discomfort to his enemies.There was just no sense of constraint, no sense of a neutral matter of competence. 

Another agency I spent some time looking at was the notorious Consumer Finance Protection Board. Trump appointed Mick Mulvaney to be the director. He was an entirely political operative who was there to derail and destroy it. Famously, he had a number of staff members taken away from their enforcement responsibilities and set them to work redesigning the logo. He told the agency to stop any ongoing investigations. Obviously, it's within the executive power of the president to make appointments, but Trump’s behavior represents a deterioration of those important underlying norms that I was talking about.

How you solve that and what kind of mechanisms you use is a difficult question. Obviously, when the Senate is held by a different party from the president, there is a certain amount of control built into our Madisonian checks and balances. When the two are held by the same party, those checks and balances don't work very well.

VI: To be a bit more specific about upholding principles of democracy, there was an account that during the confirmation hearings of Trump nominees to the federal bench over two dozen candidates refused to say that the landmark Supreme Court school desegregation decision, Brown vs The Board of Education, was correctly decided. Here is a major piece of Supreme Court precedent that did away with segregation, that demanded that there would be equality in education. Isn’t having a significant group of Trump judicial appointees not agreeing that Brown was settled law indicative of a perverse attitude toward equality in America?

Ed Rubin: I think not acknowledging Brown as settled law is a basic breach. Not only is Brown regarded as the most significant decision that the Supreme Court has handed down in the modern era, but there is plenty of confirmation of the fact that it represents a strongly held policy of the United States. It's not the same as, say, Youngstown Sheet & Tube, which is a very famous case. Who knows what it stands for? It's a very complicated decision, a one-off case, and there's been little judicial follow-up to it. If someone was asked about that in a judicial appointment hearing and they said, "I don't know," or, "I'm not sure," there wouldn't be anything particularly surprising about that.

Brown is a centerpiece of modern constitutional jurisprudence. The decision has not only been reconfirmed literally thousands of times by the federal judiciary, but it's become an emblem along with the Civil Rights Act, of a unified government commitment to equality for all citizens no matter what  their race, ethnicity, or economic status. I would say that it's simply unacceptable for anyone to not strongly support that decision and understand that it represents the policy of the United States. Appointing anyone who doesn't believe that is irresponsible. 

The other thing I would say is, you have to find outliers in order to get people who are ambivalent about Brown. You have to find people who occupy the extreme edge of the body of minimally acceptable candidates.

VI: Yet now these questionably qualified judges have lifetime appointments with these attitudes certainly shaping their future judicial decisions. Many of these candidates had their names put forward by organizations with strong ideological agendas. One example would be the Federalist Society - a large and powerful organization of academic and professional lawyers. Should legal organizations like this be shaping how this country is governed?

Ed Rubin: I think that raises an interesting question about the norms of government and how you deal with them. One hope is that these people will, over time, become more responsible. You hope that institutions and institutional norms will hold. But if one side breaches, the best strategy for the other side is to breach. This is, of course, the prisoner's dilemma game. The optimal strategy is to be nice. That means that you follow a cooperative strategy until the other party defects, and then you defect.

Right now, appointments are no longer subject to the filibuster. Funding is, but the appropriations bill isn't. The Democrats could conceivably respond by defecting. They could say, "Okay, the amount of money here isn't great. We're going to appoint 1,000 new federal judges. We are going to ram through an absolutely massive number of appointments in response to what the Trump administration very consciously did. We're just going to fill the bench with people from the left-hand side of the spectrum.”

VI: Candidates associated with the American Constitutional Society.

Ed Rubin: Yes. Interestingly, and I think with some justification, the Republicans have explained that the reason they've made the Supreme Court appointments more ideological is in response to the rejection of Robert Bork’s nomination to the Supreme Court. There is no question that Robert Bork was qualified. He's a brilliant lawyer and transformed his field, which is antitrust. Not an easy thing to do in this day where there are hundreds of people in legal academics working on any even minor field. I think the Republicans’ attitude was, "This is not legitimate, and so we're entitled to retaliate." Then, of course, the response from the other side is retaliation and you get an escalation that begins to undermine the democratic norms that we rely on.

I think that is very much of an immediate concern in the Biden administration. To what extent are they going to respond in kind to undo what Trump has done? To what extent are they going to try to maintain a notion that opposition is the loyal opposition and we're going to try to work together to repair the norms and not just counteract the other side’s actions.

VI: Let's examine those within the government who are supposed to protect the rule of law. There is the Justice Department and the various legal counsels in Congress and in the Executive branch. During the Trump administration, those offices were politically weaponized to defend the Executive branch, to defend Trump specifically.

Is that also an overreach of Executive power to use the legal profession in this way?

Ed Rubin: Yes. It went along with disempowering the inspectors general and the other supervisory mechanisms that are built into the system. It raises a question about what kinds of protections are attached to these positions. Obviously, what we built into the Constitution is the idea of judicial independence, that you can't fire or decrease the salary of a federal judge. What goes along with that is a very strong norm that you can't try to influence a federal judge. Even Trump didn't call federal judges on the phone and ask them to decide cases in a particular way. 

VI: Trump did question the ability of a federal judge to rule fairly because he was of Hispanic heritage.

Ed Rubin: Yes. In my  naiveté , I assumed that after Trump said that a federal judge, because of his Hispanic origin, could not reach a fair decision, he would lose the election. That people would just find that unacceptable, because the independence of the judiciary is so deeply ingrained that Trump’s disrespect of this judge would produce enough of a reaction against him so that it would really have hurt him electorally.  But it turned out that nothing hurt him electorally.

I happen to think that we need to create administrative mechanisms as an intrinsic part of democracy. The main example I would give of this is that we need an electoral commission that is independent and operates at the level of prestige of the Supreme Court.  It needs to be structured in a nonpartisan way through various mechanisms. It needs to be available to monitor the electoral process. What we have right now is something that should immediately raise alarms, which is that one of the competing teams controls the umpires. This is something that would never be allowed in any professional sport, which not only features the independence of the referees, but the overwhelming presence of the referees. If you look at a major league game, football, baseball, the field is covered with umpires. They're all over the place.

We don't have neutral umpires in our electoral system and so we see voter suppression and the manipulation of the rules. Georgia Republicans are trying to make it illegal to provide water and food for people who are waiting on long lines because they live in the inner city. These things are truly outrageous and counteract the most basic mechanism that we use, the definitional mechanism of our democratic government and the thing that confers legitimacy. I think we need an institution that can act in a politically astute and legally effective way.

The first time Donald Trump said that he thought the Pennsylvania election would be rigged if he didn't win, he should have received a letter saying that either he must document his claim in a hearing, or he would be fined 10% of his campaign fund and if he repeated it, his name would be excluded from the ballot. That's just something that is basic to the electoral process. Again, what Trump did had rarely been done before and so we relied on norms to defend ourselves against things like that. It's when, as happened in Watergate, you get someone who is willing to breach those norms, that it should set off alarms and lead to institutional reform.

VI: There is a group of referees in the government - the inspectors general whom you stated the Trump administration successfully disempowered. In a conversation I had recently with Tom Ginsburg about reforms he thought needed to protect democratic governance, he recommended new procedures be established assuring inspector generals are an untouchable group in the government that can function independently and do the important oversight work that they're supposed to.

Ed Rubin: Again, I would say that this is a failure to think about administration as a central component of democracy. We're good with federal judges, and we're also good with administrative officials when they look like judges. The administrative law judge has guarantees of independence that are close to being equivalent to a federal judge. They're not appointed for life, but they're appointed for a long term of years. They're specialized judges, they don't have general jurisdiction, so they work for an agency. The largest number of them are working for the Social Security Administration. Several other agencies have a group of administrative law judges. I believe the National Labor Relations Board has about forty of them, Although they work for the agency, they are independently organized and they can only be disciplined independently by the Merit Systems Protection Board. 

We have built into these administrators a system that basically makes it impossible to intimidate or corrupt them because it has all the controls that we afford to Article III judges. Their salaries can't be reduced, they can't be fired, except through this centralized mechanism that doesn't answer to the particular agency. The reason we've been able to do that is that these people function just like judges, so we're able to extend judicial respect to them.  What we need is something similar for other administrators, a similar overarching structure with protections built in and a professional norm.

The administrative law judges can rely on a very strong professional norm, which is the federal judiciary as its model. Here, we have another example of institutional isomorphism.  The inspectors general need a similar norm. There needs to be a very strong sense that inspectors general are people who are engaged in independent investigation and may not be subverted. Their appointments need to be judged by somebody that will monitor any political appointment for competence and neutrality. That whole system needs to be very much rethought and strengthened. I think the only way to do that is to rely on a concept of administration as having as strong a normative and democratic role for it as legislation or executive action.

VI: During the Trump administration, and specifically last year in the run up to the election, there was lots of rhetoric about the way states held elections. Fraud and voting irregularities were frequent Trump mantras.The election was held and even before the complete results were known, Trump made baseless accusations that there had been widespread voter fraud and abuses. This quickly escalated to what has been labeled as the “big lie” - that the 2020 elected had been “stolen” and the Biden/Harris victory was illegitimate. 

To push the “big lie” private and government lawyers supporting Trump took this claim to over sixty courts in efforts to have votes declared invalid and suppressed. To the credit of the judges presiding in those courts all Trump claims were rejected. 

Commentary on these actions has called into question the ethics and professional responsibility of the lawyers involved. The ABA Rules of Professional conduct require “all lawyers going into a courtroom to be candid and truthful in their statements and actions in legal proceedings.”

Were these lawyers breaching professional and ethical standards to knowingly bring false claims into a courtroom?

Ed Rubin: Interestingly, they sort of came in with the big lie but they were constrained, I think, by those norms as well as by rules of evidence and threat of perjury. The lawyers pressing Trump’s voter fraud cases actually were careful to make different assertions in court than they were willing to make to the general public. They had admitted in court that there was no fraud.

In most of the cases, they were trying to argue procedural rules. In the Pennsylvania cases, they were saying that ballots had been allowed after the election. Obviously, that was true. Ballots had been allowed. Then they were making a legal argument that it violated principles of Pennsylvania law. In other cases, they were saying that there had been changes in the law regarding mail-in ballots or things like that. There were actually constraints on what they said directly in court about the possibility of fraud.

Where they weren't constrained was in the public forum and that led to the ability to mobilize people who were angry or dissatisfied. Of course, there is always the danger, in any procedural system, that the losers, instead of playing by the rules, will consider their desire to win superior to their obligation to abide by the rules that led to their loss. 

You never see a professional sports team physically attack the umpires or try to climb up and change the numbers on the scoreboard.  Everyone on the field and in the stands understands that much more important than winning the game is the integrity of the sport. If they lose that, they won't have any salaries, they won't have any jobs left. That will be the end of the sport. 

The question is always how you create a normative structure so that people are willing to accept the results as they do with sports events or court decisions. Tom Tyler wrote a book, Why People Obey the Law, where he suggested that it's the fairness of the procedures that lead people to be willing to accept the fact that they lost the case and to obey the orders of the court. I think we did have that with the judiciary. When the cases came up before the judiciary, despite the fact that a number of them were Trump appointees, they universally rejected these obviously false claims.

Where we didn't have that -- and it goes back to my notion of an electoral commission -- where we didn't have that was in the general public forum where outrageous claims that no one dared make in court were being advanced all the time. Again, there needs to be an institution of a similar structure to courts that would be able to adjudicate -- definitively adjudicate -- any claim of fraud.  Of course, such a commission would have quickly concluded that there wasn't any fraud and then been able to impose sanctions on someone who continued to assert it.

At some point, instead of having Trump continuing to be able to state this lie publicly, he should have been informed that he could never stand for office again and that he would be fined for making these unsupported claims. Every lawyer who advanced them in the public forum should have been disbarred. Everyone who supported those claims should have received a similar warning followed up by sanctions if they refuse to comply. But that would take an institution that we currently don't have.

VI: In other words, the rules that apply to the actual courtroom should also apply to the court of public opinion? The idea is that if lawyers are constrained from telling falsehoods within the courtroom itself, they need to also have the same constraints when they are addressing the public at large?

Ed Rubin: Yes.  What we need is a mechanism that can monitor the electoral process, and in this case, its follow up, at the same level that the judiciary monitors the agencies. Now, of course, we have a countervailing value here, which is the First Amendment and free speech. It's always been considered that political speech has to be the type of speech that's most free - subject to the least constraint - because it's so central to the electoral process. So there's tension there. 

What I would say is we need to start thinking about the electoral process differently. That is,  that it's a specialized procedure. We have a First Amendment but we also  have very strong norms of fairness for the courts. The courts also happen to be the place where speech is the most heavily regulated of any government institution. You are really constrained about what you can say. There's a rule, for example, that you're not allowed to bring in evidence of the prior conviction of the defendant. You can't just jump up in court and say, "Jeez, it occurs to me that these prior convictions are relevant here." You'll have a mistrial. You can't speak out of turn. When you give your closing argument, you can't introduce new evidence or make statements that aren't supported by the prior trial record and so on and so forth. There are a lot of rules.

The reason we have those rules is that it's not a public forum. It's a specialized structure where fairness has to be determined not only by people's ability to speak without political constraints, but also by the controls on what they can say such that fairness is maintained. Just as on the playing field, you can't, when you get to first base, punch the first baseman in order to make him drop the ball so you'll be safe.

We need to regard the electoral process, the time leading up to the election and the follow-up, as having that quality to it where speech does need to be monitored. Not in a politically biased way, but on the basis of what you can say, and what you can't say. i would extend this to campaign financing - being able to spend unlimited amounts of private money is something that represents a real distortion of our system.

We have failed to develop these institutional mechanisms. Sooner or later it will, as it did during the Trump era, really hurt us unless we can do so. We see this all over the world. Elections are called into question by a populist leader, or they're obviously corrupt, or the person in power doesn't follow the rules, let's say, by standing for a third term when he’s  term-limited. It's something that we've now been sufficiently alerted to so that a lot of real institutional attention needs to be paid to it. H.R. 1 is a good start, but I think we really need institutional structures.

VI: There is certainly a need to stem the erosion of democratic norms and these are worthy suggestions, but in these very polarized times are they utopian ideas or do you think that there is a possibility of having reforms for new procedures and institutions debated, examined, and moved forward in a constructive way by the political factions?

Ed Rubin: Ah - well that's the question. It goes back to the prisoner’s dilemma -- do you play tit for tat or do you try to work together? The most aggressive stance that the Democrats could take is to say, "No, we represent the real spirit of America here that there should be no voter suppression." There's a lot of evidence to support that. Most democracies have automatic registration. In most democracies, levels of eligible voter registration are close to 100% and in the United States, I think it's under 75%. Some of the restrictive rules of the states are just facially absurd. One thing the Democrats could do is use their slim majority to abolish the filibuster, pass an aggressive voter rights law, and exclude it from the jurisdiction of the Supreme Court. 

I think there's an argument for doing that, although it would be an aggressive move. I do think we could craft a constructive institutional reform that involved a neutral election commission and empower it to take discretionary action in the face of whatever threats are going to arise. Those threats will be complex and nuanced, given the internet, voting machines and social media. We've only seen the beginning of efforts to manipulate elections, I think, using the fearsome machinery of modern technology and modern social science, including opinion surveys and the manipulation of public discourse. I really think we need an institution that's neutral and expert, consisting of people who are really knowledgeable about voting machines, about computers, about the internet, and who can speak with authority and can say, "We know what a fair voting machine looks like and we will hand down a ruling in this case."  "We know what a bot on social media looks like and we are going to prohibit its operation and we know how to do that." 

I think that institutional reform might have a less partisan appearance to it and at least get people thinking about the machinery of democracy. The hope is that over time both parties would recognize that they need that sort of protection. If the Democrats are able to mount a sufficient threat to the Republican strategies, it might be that a neutral institutional reform would be something that the Republicans would perceive as preferable to a political tit for tat where the Democrats pass an unreviewable law that precludes any of the strategies that the Republicans want to use.

VI: Ed, we're coming to the end of our time and I’d like to end if possible on a positive note. What you have just described for us is some way of dealing with the dilemmas that we now have of threats to the fundamental principles of democracy that we're trying to uphold. Certainly confidence in the voting process and those who should be supporting the rule of law are paramount ones.

Ed Rubin: I think the overarching positive note is that our institutions did hold against Trump’s challenge. I do believe that Trump wanted to cancel the elections and everyone rose up and said, "You can't do that." I do believe that Trump wanted to arrest Joe Biden, but Bill Barr said, "This is too far, I can't do it." I do believe that after the election,Trump had all sorts of plots that Barr was unwilling to go along with and that ultimately he felt he had to publicly declare that the election was fair and he tendered his resignation. I do believe that Trump asked the military if they would let him invoke the Insurrection Act and overturn the election. Mark Milley, the head of the Joint Chiefs of Staff, gave a speech at a minor event -- the opening of the Museum of the American Soldier in D.C. I’m sure he was expected to give a perfunctory, celebratory speech but he pointedly said, " The military represents the constitution, not any individual."  I think he was speaking directly to Trump at that moment because Trump had asked him if he could engage in a military takeover. The positive thing is that, in the final analysis, people simply were not willing to ignore accepted norms and go along with President Trump even though they were his appointees or members of a hierarchical structure subject to his orders, like the military. That speaks well for our norms.  But we had better reinforce them because who knows what could happen next time.

Edward L. Rubin is University Professor of Law and Political Science at Vanderbilt Law School. Professor Rubin specializes in administrative law, constitutional law and legal theory. He is the author of numerous books, articles and book chapters. He joined Vanderbilt Law School as Dean and the first John Wade–Kent Syverud Professor of Law in July 2005. Previously, he was the Theodore K. Warner, Jr. Professor of Law at the University of Pennsylvania Law School from 1998 to 2005, and the Richard K. Jennings Professor of Law at the Boalt Hall School of Law at the University of California-Berkeley, where he had taught since 1982 and served as an associate dean. Professor Rubin has been chair of the Association of American Law Schools' sections on Administrative Law and Socioeconomics and of its Committee on the Curriculum.