Ethics, Duty, and Being a Regular Human Being (or an FBI Agent): Having Personal Opinions and Doing One’s Job

FBI agents are fully capable of doing their jobs, just like you and I do, even when they have personal opinions.
 
All people have opinions. They all have personal perspectives. If you passed Philosophy 101 or ever sat through a meaningful literature class, you learned that every person can only see through her own eyes and can only perceive through her own experiences and the intellectual tools the she has collected over time.
 
I worked for a federal judge and have known other judges. They all had personal perspectives, too. But they were able to act like professionals and to view every case, every time, through the lens of the law. They judged cases on the basis of the law’s requirements, even if they would have personally preferred a different outcome. They were mature and self-aware enough to tell the difference between the law’s requirements and their personal values. And because they were devoted to serving the law (that was one of their most deeply held values), they always chose the law. Always.
 
As a lawyer, I have personal perspectives that sometimes differ from my client’s values. Sometimes my clients want things that I wouldn’t want. But I am a professional, and one of my most deeply held values is devotion to my clients. While I would never break the law for my client, nor help them break the law, I will help them carry out their own lawful pursuits, even if sometimes I wish they would pursue other things or that they would share more of my personal values. I am mature and self-aware enough to know the difference between the law’s requirements, my job’s requirements, and my personal values, so I always have, and always will, choose the law and choose to do my duty.
 
This week some of you have gotten twisted into partisan nonsense because you are shocked – shocked! – that FBI agents also have personal opinions. Robert Mueller, wishing to preserve the absolute highest standards of non-partisanship, reassigned one of the agents on his team who had expressed criticisms of Donald Trump in the agent’s personal social media accounts. I wasn’t shocked, of course, because I don’t pretend that professional law enforcement agents have no personal opinions. As I insisted above, all human beings do.
 
But unfortunately, upon hearing the news, some folks (and, of course, Fox News) went straight to incorrect, partisan-motivated conclusions. They said that the removed agent clearly was “biased.” By using that label they intended to say that the agent could not have delivered impartial assessment of the evidence in front of him. Let’s take a deep breath, and let me say it once again: it is not possible for any human being to have no personal point of view. If you want FBI agents to be non-opinion-holding automatons, you might need to rethink your standard. Further, an agent expressing an observation that Donald Trump is an unlikeable person only means that the agent is being honest – Donald Trump is, after all, a crude man with many unattractive qualities who never had an insulting thought he didn’t share. Most importantly, FBI agents (like judges and lawyers) who are mature, self-aware and professional are perfectly capable of understanding the differences between the law’s application to evidence, on the one hand, and their personal values, on the other.
 
Of course there are exceptions, but this past week’s over-the-top criticisms of the entire FBI are ridiculous. We don’t actually have ANY reported evidence that this particular FBI agent was incapable of separating his personal views from his job duties, and we certainly have no evidence – NONE, EXACTLY NONE – to state that a new rule should be announced for all human nature – that is, that somehow in the age of Trump it’s impossible for anyone to act professionally. The critics seemingly want to make that argument, which means those critics just look partisan.
 
Here’s an extremely useful thing to keep in mind: There are ways to ferret out and correct for biases. When I’m involved in a legal dispute on behalf of a client, I’m not the only person involved on my client’s behalf. It would be difficult for my personal biases to find the light of day, because multiple colleagues spend energy poking holes in draft conclusions, draft arguments, and draft filings. They work to expose and correct weaknesses in our work product, including biases. Every potential weakness in my argument will have been exposed and corrected by my colleagues long before those weakness find their way into an actual court filing.
 
I learned the value of this approach from the federal judge for whom I worked. He always employed two young lawyers who assisted him with research, drafting and administration of day-to-day case management. For a while, I was one of them. Although he was a Reagan appointee and a conservative Republican, he made sure to hire law clerks with two qualities: 1) people who held a variety of personal views that weren’t always aligned with his, and 2) people with enough self-confidence to challenge him should his bias come into play. He said he wanted to be sure that his staff kept him on his toes, kept him sharp, kept him honest.
 
Similarly, no single FBI agent makes every decision in an investigation, nor does any single FBI agent make ANY decisions alone. Multiple agents (who naturally have their own diverse points of view) will assess the evidence, just like more than one lawyer will assess the law’s applicability to that evidence. And because they are professionals (which means, by the way, that they are actually trained to take account of the personal biases), they will understand the difference between the law’s requirements and any individual preferences they might have, and they will follow the law.
 
(BTW, well-established professional news organizations follow similar procedures to correct for individual biases, and all those journalists who graduated from reputable journalism programs will have received substantial education about organization management to discourage, identify, minimize and correct the influence of personal biases. Those news organizations have editorial boards and meetings where they punch holes in stories, working to identify and correct biases and weaknesses in their stories. They also understand that compensation can be structured to encourage good behavior — e.g., don’t reward management purely on the basis of readership growth (which might encourage sensationalism), and instead they reward industry recognition for journalistic excellence. Go talk to a professional journalist, and you will find that they are, in fact, professionals. In fact, some of those famous reporters at the Post and Times who report on legal issues are also graduates of the unique graduate program at Yale LAW School, which educates already well-trained journalists to assess legal issues – graduates of that program know more than your average reporter when they talk about these criminal investigations. If you’ve been calling them purveyors of fake news, you should reconsider.)
 
Of course there are exceptions. Of course. If the FBI agent who was recently removed from Mueller’s investigation was found to be incapable of separating his personal views from his work, he should have been removed from the investigation, and the fact that we WAS removed is only evidence of Mueller’s attempt to manage the investigation in a professional manner. For now, however, all that we can reasonable conclude is that Mueller wanted to avoid even the appearance of unchecked bias. So he removed the agent. Way back in July. (Somehow, some of you see that as evidence of Mueller himself having bias. I don’t see any logic in that conclusion.) You cannot conclude that work performed by that agent will render the investigation illegitimate. That’s just not correct. Every conclusion “he reached” would actually have been a group effort reached with input by multiple personnel, like all other evidentiary assessments. And every conclusion going forward will likewise rely upon the same professional procedures that the FBI has always followed.
 
If you want to identify one clear exception to the idea that public officials can do their jobs like professionals, here’s one: Roy Moore, the Alabama Republican candidate for Senate. Moore is on the record multiple times expressing his belief that his personal views should prevail over the law, if there’s a conflict. It does not matter that he thinks he reads the mind of God. After all, many people disagree with his interpretation of the Divine, which is our right as Americans (e.g., unlike Moore, most of us don’t think the era of slavery was a period of God’s blessing and America’s best history), and the reality of such disagreements is precisely why we decided long ago to be a nation of laws, not a theocracy ruled by a theocrat. Like Moore, I agree that there are such things as unjust laws, and I hope that many of us would be courageous enough to fight to protect the victims of unjust laws. However, when Moore speaks of unjust laws that require his override, he isn’t talking about protecting the innocent. He’s talking about his “right” to victimize. When the law requires him NOT to discriminate, he thinks he still has the God-given right to discriminate. Just like other occasions when public officials have found it difficult to separate their personal views from the law’s requirements, Moore got removed from office. Twice. That was the right outcome.
 
I’m sure there are other exceptions. We make a mistake, however, when we pretend that the exception is actually the rule. Don’t imagine that all people (or even most people) are incapable of separating their job from their personal perspectives. Don’t imagine that people can’t actually do their jobs. I do mine every day. The judge for whom I worked did his job every day. My colleagues do their jobs like professionals. Most of you, I presume, are likewise mature enough and self-aware enough to separate the requirements of your job (and the requirements of the law) from your personal views. We all know the difference between our duties and our preferences, and we do our duties.
 
FBI agents also know the difference, and they will also do their jobs. Like always.
 
I therefore encourage you to be careful when you impugn the entire institution of the FBI. That organization is the envy of the world in terms of professional law enforcement, full of good people who act professionally because they love the law and they love America. By calling into question all the FBI agents involved in the Mueller investigation, you are not only undermining their current investigation, but also harming an institution that is good for American democracy. Which means you, too, are unwittingly harming American democracy. Don’t do that.
 
Please be more nuanced in your reading of the news, and, while I hope you will remain realistic when assessing political matters, perhaps you might consider being more charitable to the human beings in the story, like the fine men and women of the FBI. They might have opinions, like you and I, but that only means they are humans, and humans ARE capable of acting professionally.

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