Getting Rid Of The Lawyers In His Cabinet May Be Trump’s Best Move Yet

Getting Rid Of The Lawyers In His Cabinet May Be Trump’s Best Move Yet

Trump’s Cabinet is not trained in spin and convincing people of policies that don't work. His nominees have real-world experience, and that's what we need.
Michael Ginsberg
By

As a lawyer, I can fairly describe this article as what lawyers refer to as a statement against interest. I have practiced law for 15 years since leaving my original field of engineering. Nevertheless, I believe the prospective cabinet of President-elect Donald Trump is an extraordinary and welcome break from a trend plaguing our government and society at large: the overrepresentation of lawyers in positions of power and leadership.

The Trump Administration represents leaders drawn from citizens at large, and not policy wonks who have made Washington policymaking their careers. It is a throwback to the “dollar-a-year” cabinet secretaries who left the business world and brought their experience to Washington in times of crisis. It is a perfectly timed experiment in citizen governance.

The Obama Administration has been shot through with lawyers in some of the most important government positions. All of the following are attorneys: President Obama; Vice President Biden; Jeh Johnson, Secretary of Homeland Security; Janet Napolitano, former Secretary of Homeland Security; Tom Perez, Secretary of Labor; Tom Donilon, former National Security Advisor; Valerie Jarrett, one of the president’s closest advisors; John Kerry, Secretary of State; Hillary Clinton, former Secretary of State; Ken Salazar, former Secretary of the Interior; Tom Vilsack, Secretary of Agriculture; Gary Locke, former Secretary of Commerce; Nancy DeParle, the health care czar; and several others. From health care to national security to foreign policy, lawyers have been at the center of policy making for the last eight years.

We Have Too Many Lawyers Running Our Country

Present-day government lawyers have three key characteristics that have undermined the current administration and are not suited to the country’s current circumstances. First, government lawyers zealously defend their policies, no matter what the facts might be. Second, lawyers tend to narrow people’s freedom of action. This is particularly true of regulatory lawyers and legislators, who pass laws and draft regulations that constrain activity and narrow the scope of what citizens can do. Third, many of the lawyers serving in the highest levels of the Obama Administration had limited experience in the areas in which they served.

Lawyers are trained to see both sides of any argument and zealously advocate the side of their clients. They are trained first and foremost to make arguments. And lawyers in a presidential administration are no different. They argue zealously in support of their administration and its success. They take any facts at hand and make the best case possible for their administration.

Moreover, when arguing a case to a jury, civil lawyers do not need to meet the famous “beyond a reasonable doubt” standard of criminal law. Much more often, lawyers must meet the preponderance of the evidence, i.e. the “more likely than not” standard. That is, lawyers only have to demonstrate that something is 51 percent likely true, as opposed to 49 percent likely not true. In a political context, this means that lawyers flacking for an administration need only marshal enough facts to show that a proposition is more likely true than false. Thus, an administration staffed with lawyers is trained to argue for the success of their administration’s policies using whatever facts they can pull together.

Obama’s Lawyers Did Nothing Good for Americans

For the last eight years, the Obama administration has treated Americans to a reprise of Kevin Bacon in Animal House—“remain calm, all is well”—even as its policies crumble in failure after failure. The Administration has trotted out bevies of statistics on everything from Obamacare to unemployment to demonstrate the success of its policies. Obama and his various Secretaries of State have argued over and over that the world is a safer place than before they came into office.

Yet Americans know that health care premiums are skyrocketing while coverage networks are narrowing. Americans instinctively know that while the official unemployment rate may be down, labor participation rates are at all-time lows. Americans see the carnage in Libya, Syria, Yemen, Ukraine, and Europe, and recognize that all is not well in the world.

Instead of changing directions and adopting new policies, the current administration came up with new arguments—as any good lawyer forced to argue a weak set of facts would. The administration points to the many more people who have gotten health insurance—even as most of that increase is the result of Medicaid expansion and many people lost their existing health insurance under Obamacare. The Administration endlessly repeats that it ended the wars in Afghanistan and Iraq, even as the situation deteriorated in both countries.

How Donald Trump’s Team Can Achieve More

Donald Trump’s administration is shaping up to be a sharp break from the practice of staffing the government with lawyers. The Trump Administration is set to be led by business executives, former military leaders, and grassroots leaders with a record of accomplishment at the state and local levels. These include: Rex Tillerson, ExxonMobil CEO, at State; Andrew Puzder, CKE Restaurants CEO, at Labor (who previously was a business lawyer before becoming CKE’s CEO); Gen. James Mattis at Defense; John Kelly at Homeland Security; Betsy DeVos at Education; Tom Price, an orthopedic surgeon at Health and Human Services; and Mick Mulvaney, an entrepreneur, at OMB.

These are leaders who, in their private sector positions, could not get away with just making arguments and creating reasonable doubt. These are individuals whose performance was judged by objective criteria: share prices, company profits, the success of surgeries, battlefield strategic and tactical success. Their business activities did not allow for argument or shades of gray. The battle was won or lost; the company’s stock price and value went up or down; the surgery was a success or it wasn’t.

Consequently, Trump’s Cabinet is one that is not trained in spin and convincing people of something the facts do not support. The proposed nominees are used to presenting unvarnished facts and having to stand or fall on the objective results of their work.

Trump Has Chosen Folks With Real-World Experience

When I was studying engineering, I was taught to draw a box around the final answer after working through a problem. When I got to law school, there were no final answers, and no boxes to be drawn around them. President-elect Trump is staffing his administration with individuals accustomed to having to draw a box around a final answer and having to live with it—good or bad.

In addition, Trump’s Cabinet nominees value freedom of action. As businesspeople in the private sector, less regulation and greater freedom meant greater flexibility to accomplish business objectives. For them, more regulations mean more overhead. That may be good for lawyers, but it is anathema to businesses that need to compete. Lawyers trained to enforce laws think in terms of how they can restrict citizens’ actions, rather than in terms of how they can unleash citizens’ creative power.

Finally, Trump has chosen Cabinet officials with direct, first-hand experience in the areas for which they will have Cabinet responsibilities. Several commentators have complained that the nascent Trump Administration doesn’t include enough experts with advanced academic credentials. I would argue this is a feature, not a bug. Too much of our policy establishment is comprised of individuals who come straight from school to Washington to work in policy and politics with only limited real world experience.

Lawyers Don’t Have a Monopoly On Expertise

Americans are a sensible and intelligent people. Many of them think about and discuss foreign policy, domestic policy, and politics. Anyone can read books or news magazines on these topics and form an educated opinion about them. Just because some are paid to think and write about these topics, or have advanced degrees from prestigious institutions, does not mean that they have a monopoly on expertise.

In fact, I would argue that at this point in our history, experience is the most important teacher. Graduates of the school of experience have the most to offer our policy process. Tom Price is a practicing orthopedic surgeon who suffered under federal regulations of the health care industry. Rex Tillerson and Andrew Puzder know the costs onerous labor and environmental regulations have on American competitiveness (and in Tillerson’s case, has negotiated directly with foreign leaders). Betsy DeVos has run school reform programs in her native Michigan.

The Trump Administration is one that instinctively understands the effect of government activities on the private sector. They know the business costs of government edicts and Executive Orders, and will be inclined to use such tools more judiciously and with more restraint than the Obama Administration.

The Trump Administration will be a grand experiment in citizen governance—an experiment that, after eight years of academic and wonky arguments and counterarguments over policy minutiae and statistics, is refreshing and long overdue.

Michael is an attorney in Washington DC for a defense contractor. He is a 2002 graduate of Harvard Law School.

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