Editor’s Note: Steven Lubet is the Williams Memorial Professor at Northwestern University Pritzker School of Law. He is the author of “Fugitive Justice: Runaways, Rescuers, and Slavery on Trial,” which includes details and quotes from the Anthony Burns case. The opinions expressed in this commentary are his.
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Steven Lubet says an example from the slavery era helps illuminate the dynamic cabinet members now face
They are caught between hoping they can improve the situation and being complicit with the President's statements on Charlottesville, Lubet writes
President Donald Trump was not standing alone on the podium when he informed the world that some participants in the Charlottesville neo-Nazi march were “very fine people.”
He was flanked by Transportation Secretary Elaine Chao, an immigrant from Taipei, Treasury Secretary Steven Mnuchin, who is Jewish, and Chief of Staff John Kelly, all of whom did their best to remain stone-faced while their boss veered ever more deeply into apologetics for racism.
As business executives, military leaders, and Republican office-holders join in the repudiation of Trump’s statements, one question must be asked: How much longer can decent people continue to serve in Trump’s cabinet?
There are few historical precedents and they tend to go both ways. William Jennings Bryan resigned as Woodrow Wilson’s secretary of state over what he considered unnecessary bellicosity on the eve of World War I. In contrast, most members of Abraham Lincoln’s cabinet tried to keep their jobs with Andrew Johnson, even after the new President showed his determination to undermine Reconstruction and the rights of newly freed African-Americans.
In fact, Secretary of War Edwin Stanton refused to leave his position even when Johnson fired him, which led to the latter’s impeachment for violating the Tenure of Office Act. (Johnson was acquitted by a single vote in the US Senate and therefore served out his term.)
There is no single answer to the officeholder’s dilemma – to stay or go – but there is one relatively obscure historical figure who wrestled with it quite openly, and came to what we can now recognize as a tragic, though heartfelt, conclusion.
In late May 1854, a fugitive slave named Anthony Burns was apprehended in Boston and brought before Judge Edward Loring for extradition to Virginia. The national government was much smaller in those days, and it was not unusual for state judges also to hold federal administrative positions. So it was with Loring, who was both a judge of the Massachusetts Probate Court and a United States Commissioner. It was thus Loring’s obligation to rule on the slaveholder’s petition for a “Certificate of Removal” under the Fugitive Slave Act of 1850.
Many Bostonians were outraged, both by the seizure of Burns and the idea that a Massachusetts judge might play a role in condemning a man to slavery. There were loud and repeated calls for Loring to resign from his commissioner’s appointment. A probate judge, they argued, was responsible for the welfare of widows and orphans, and should never be entangled in the ruthless business of slave catching.
A thoughtful man and a diligent jurist, Loring took the criticism seriously. He responded in writing. “It is said that the statute is so cruel and wicked that it should not be executed by good men,” he allowed. But if all good judges were to resign as Fugitive Slave Act commissioners, he continued, “then into what hands should its administration fall … and what is to be the protection of the unfortunate men who are brought within its operation? Will those who call the statute merciless commit it to a merciless judge?”
The President at the time was Franklin Pierce, a “northern man with southern principles” who put the full weight of his authority behind the Fugitive Slave Act and the return of Burns to Virginia. Loring had qualms about enforcing the law as demanded by the administration, but he believed that he had to remain on the bench.
“If the statute involves that right, which for us makes life sweet, and the want of which makes life a misfortune, shall its administration be confined to those who are reckless of that right in others, or ignorant or careless of the means given for its legal defense, or dishonest in their use?” Loring wrote. “If any men wish this, they are more cruel and wicked than the statute, for they would strip from the fugitive the best security and every alleviation the statute leaves them.”
Kelly, Chao, and Mnuchin may well be indulging in the same rationale. As awful as they may have found Trump’s comments, it is likely that they hope to exercise a restraining influence in the future. If they resign from their positions, after all, Trump will only name replacements who stand to be less diverse and humane. If that is their thinking, they ought to reflect on Loring’s example.
Despite his protestations of mercy, Loring entered a judgment in favor of the slaveholder, as he believed the law required. He ordered Burns’ rendition to Virginia, where he was beaten and starved. Burns’ supporters later raised enough money to buy his freedom, and he returned to Boston, no thanks to Judge Loring.
It turned out that a good man could not play an honorable double role in aid of a racist law or presidential administration. The Massachusetts legislature later recognized as much by voting to remove Loring from the Probate Court, and he is remembered today as an abettor of slavery.
In the end, complicity is complicity.