But let’s suppose the incoming administration has no inclination toward what I called the “nightmare scenario” of crushing the opposition. Let’s suppose the nightmare scenario is just that: the paranoia of Trump opponents who got the shock of their political lives last Tuesday. Then the argument for service becomes compelling.
But one-off nightmare issues might still crop up. Rounding up millions of Mexicans is an obvious example. From the point of view of government lawyers, the dragnet would be packed with cutting-edge legal issues, litigations, conference calls, and high-level excitement. It would also be filled with opportunities to tell yourself that you are fighting for the lesser evil, down there in the weeds of the Fourth Amendment and the Immigration and Customs Enforcement regulations.
Or honoring the campaign pledge to bring back torture. So much solid law to overcome! And so many opportunities to fight for the lesser evil! No waterboarding, only sleep deprivation and stress positions. Not the military, only the CIA. Not all captives, only captives about whom there is evidence they might know something. And no mere probable cause that they know something, but clear and convincing evidence. (Or should it be beyond a reasonable doubt?) A good day’s work fighting the good fight for the lesser evil.
But what if involvement in any of these things makes you sick, as it should? How far can you compromise your moral principles? Here, I will take a cue from another philosopher, Avishai Margalit, in his powerful book On Compromise and Rotten Compromises. Margalit is not a moral purist, and he does think that lesser-evil arguments are sometimes genuine justifications. Margalit’s fundamental argument is that there is a difference between bad compromises and rotten compromises. Bad compromises: yes, if they are the only way to do good or mitigate harm. Rotten compromises—never.
And what is a rotten compromise? It is a compromise where you participate in assaults on fundamental human dignity. That’s a vague and porous standard, but if you are a lawyer with a conscience, you know it when you see it—provided you don’t loophole-lawyer your own conscience. Mass dragnets and deportations, torture and degrading treatment, targeting policies that accept excessive civilian casualties or ignore war crimes, deliberate failure to repress anti-Muslim hate crimes: All of these are assaults on human dignity, and compromising your principles on them is a rotten compromise. When it comes to rotten compromises of your principles, exit takes precedence over voice and loyalty. Exit doesn’t necessarily mean resigning, although it may. It certainly means refusing to participate.