Principled Resignation: The Lawyers’ Dilemma

Guest Blogger

Steven Lubet

In 2004, The Clash’s iconic “Should I Stay or Should I Go” (with no question mark in the title) was ranked 228 on Rolling Stone’s 500 Greatest Songs of All Time.” Beginning with Pres. Donald Trump’s second inauguration on January 20, 2025, federal prosecutors have increasingly had to ask themselves the same question, with the appropriate punctuation mark. Faced with increasingly unethical demands from higher ups, should they stay or should they go?

The resignation conundrum is not new, but it arises most sharply in times of extreme national disruption. It was perhaps first articulated by a federal official during the fraught era before the Civil War, and it has lately confronted lawyers in the Trump administration’s Department of Justice.

Trump’s Vendetta

Attorney General Pam Bondi was confirmed on Feb. 4, 2025. Principled departures from the Department of Justice began almost immediately. Seven prosecutors very publicly quit their jobs in protest of an order to drop bribery and fraud charges against then New York City Mayor Eric Adams, which was perceived as a bargain in exchange for assistance with Trump’s immigration policies. The indictment was to be dismissed without prejudice, meaning that it could potentially be reinstated in the event that Adams was insufficiently cooperative with Trump’s agenda.

On Feb. 12, Danielle Sassoon, the Acting United States Attorney for the Southern District of New York, announced that the instruction to dismiss the Adams case, delivered by Bondi’s deputy Emil Bove (Trump’s former defense counsel and now a judge of the Third Circuit Court of Appeals), was “inconsistent with my ability and duty to prosecute federal crimes without fear or favor.”

Other experienced prosecutors quickly followed suit. The most expressive resignation came from Hagan Scotten, an army special forces combat veteran and former clerk for Chief Justice John Roberts. In a publicly available communication to Bove, Scotten explained his refusal to participate in a “dismissal-with-leverage” deal for Adams. “I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion” he wrote. “But it was never going to be me.”

Five other lawyers in the Justice Department’s Public Integrity Section also resigned in protest of the deal with Adams.

The corruption charges against Adams were nonetheless dismissed pursuant to a motion personally signed by Deputy Attorney General Bove. But in a sharp rebuke to the Department of Justice, Judge Dale Ho refused the request to dismiss the case without prejudice.

Essentially agreeing with the now-absent lawyers, Ho stated that “dismissing the case without prejudice would create the unavoidable perception that the Mayor’s freedom depends on his ability to carry out the immigration enforcement priorities of the administration, and that he might be more beholden to the demands of the federal government than to the wishes of his own constituents.”

Recognizing that he had “no way to compel the government to prosecute a case,” Ho instead dismissed the indictment with prejudice, prohibiting any future prosecution of those charges.

Not long afterward, Eric Siebert, the Acting United States Attorney for the Eastern District of Virginia, resigned rather than pursue an indictment against New York Attorney General Letitia James, who had obtained a massive civil fraud verdict against Trump. Although Siebert made no mention of the James prosecution in his resignation letter, Trump himself had complained about the non-indictment of James, telling reporters that he wanted Siebert “out” of office.

Another top prosecutor in the Eastern District of Virginia was fired after he refused to reinstate previously dismissed charges against former FBI director James Comey, a long-time target of Trump’s ire. And at least four other career prosecutors were terminated in the Eastern District of Virginia, reportedly over their resistance to bringing charges against James or Comey.

Most recently, six federal prosecutors in Minnesota resigned rather that comply with a directive to launch a criminal investigation into Becca Good, the widow of Renee Good, the who was shot to death by an ICE agent on January 7, 2026.

Most notable of the six was Joseph Thompson, second in command of the Minnesota office, who had overseen a statewide investigation into widespread social services fraud. According to the Minneapolis police chief, Thompson’s resignation dealt a profound blow to the fraud cases, which were the reason given for the Trump administration’s immigration crackdown in Minnesota.

“When you lose the leader responsible for making the fraud cases,” he said, “it tells you [the ICE intervention] isn’t really about prosecuting fraud.”

And therein lies the problem.

Thompson and other attorneys faced an intractable dilemma. Should they comply with an objectionable, and perhaps unethical, order from higher-ups, which would allow them to continue their important work on other cases?

Or should they resign in protest, recognizing that they are leaving behind a diminished staff that will have difficulty prosecuting serious cases? Perhaps even more vexing, resignation might protect the individual attorney’s own integrity, with no effect at all on the progress of the troubling case, which may sometimes proceed along the same dishonorable path in the hands of lawyers with fewer scruples.

It is a challenge that has been faced before in U.S. history, with mixed results.

The Fugitive Slave Act of 1850

In the late spring of 1854, Edward Loring was one of the most important legal figures in Boston. A relative of the venerable Curtis family – which had produced generations of lawyers, merchants, judges, politicians, and eventually a Supreme Court justice – Loring served as a judge of the Massachusetts Probate Court, a professor at Harvard Law School, and a federal commissioner. It was the last position that created his dilemma.

The infamous Fugitive Slave Act of 1850 had created a class of federal commissioners charged with adjudicating slaveholders’ claims for alleged runaways. Because the positions were part-time, they were typically filled by local judges or lawyers. Thus, it was not unusual for Loring to sit as both a probate judge and fugitive slave commissioner.

The Fugitive Slave Act had been included in the Compromise of 1850, as a concession to the southern states in one of many efforts to prevent the union from splintering over the issue of slavery. It was purposely designed to speed the “rendition” of alleged fugitives by superseding the “personal liberty laws,” which guaranteed jury trials among other protections, enacted in many northern states.

The federal statute was heavily weighted in favor of enslavers. A warrant could be issued on nothing more than the say-so of a purported slaveholder, accompanied by a vague physical description of the alleged runaway.  In addition to precluding jury trials, the Act denied essential due process provisions such as habeas corpus, or appeal, and even the right to speak in one’s own defense. Perhaps most glaringly, the Act provided for a $10 payment for commissioners who granted a “Certificate of Removal,” ordering the return of an individual to enslavement, but only $5 if the defendant was found to be free.

The Act was greeted with protests in the North, objecting to the elimination of due process, as well as the requirement, enforced by fine or imprisonment, that “all good citizens . . . aid and assist in the prompt and efficient” enforcement of the noxious law. Nonetheless, nominally anti-slavery political figures, such as Daniel Webster, supported the Act and lectured the northern public on their duty to follow the law.

Anthony Burns

Against that backdrop, on May 24, 1854, a Black clothing store clerk named Anthony Burns was arrested in Boston as an alleged fugitive from Virginia and brought before Judge Loring for a determination under the Fugitive Slave Act. Although the Act itself did not provide for counsel, Richard Henry Dana, among the most prominent attorneys in Massachusetts, learned of the arrest and stepped forward as Burns’s lawyer.

A thoughtful man and a diligent jurist, Loring had his own misgivings about the Fugitive Slave Act. Recognizing the inherent tension between the demands of justice and the provisions of the statute, he chose to allow Dana considerable latitude in mounting a defense. The subsequent hearing stretched over four days.

Meanwhile, Burns’s arrest sparked mass protests in Boston, where anti-slavery sentiment was strong. Many Bostonians, citizens and members of the clergy, called upon Loring to abort the hearing by resigning from the federal commissioner’s position. As probate judge, he administered the estates of widows and orphans, which required empathy and compassion, and many found it inexcusable for him to participate, even as a judge, in the brutal process of slave-hunting. 

Loring was not unmoved by the criticism. Taking it to heart, he issued a statement in response:

“It is said that the statute is so cruel and wicked that it should not be executed by good men,” he wrote. But that would lead to a troubling paradox. If compassionate judges were to resign rather than preside, “then into what hands should its administration fall? Will those who call the statute merciless commit it to a merciless judge?”

Despite his qualms, Loring believed he had a duty to remain on the bench. Otherwise, judging would “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.”

“If any men wish this,” Loring continued, “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.”  

It was all talk. Despite his protestations of mercy and humanity, Loring ultimately granted a Certificate of Removal to the slaveholder, ruling that he had no choice under the law.

President Franklin Pierce, a “northern man with southern principles” put the full weight of his authority behind The Fugitive Slave Act. Recognizing the possibility of mass resistance, he authorized the use of 120 federal troops, each man armed with “a short Roman sword & one revolver” to enforce Loring’s judgment. As one observer noted, “It was the first time that the armed power of the United States had ever been arrayed against the people of Massachusetts.”

Burns was returned in chains to Virginia, where he was starved and abused.

For their part, Burns’s foiled supporters exemplified the meaning of humanity that had eluded Loring. They raised sufficient funds to obtain his freedom, although it required a Black clergyman to risk his own freedom by traveling into the slave state of Maryland to complete the transaction.

Burns returned to Boston and later studied theology at Oberlin College, no thanks to Loring.

Loring continued to believe himself a “good judge,” but the people of Massachusetts did not agree. He had dishonored himself by enforcing a pitiless law in a racist regime. He was soon dismissed from the Harvard Law School faculty, and the Massachusetts legislature later removed him from the Probate Court.

Loring is remembered today, if at all, as an enabler of slavery.  

Conclusion

Loring presided over the Burns case in an era when there were no written ethics rules for lawyers or judges. Coincidentally, the first set of legal ethics principles appeared later in 1854, when University of Pennsylvania Professor George Sharswood published A Compend of Lectures on the Aims and Duties of the Profession of Law. It did not include a discussion of judicial ethics.

Today’s Massachusetts judges are governed by state and federal versions of the Code of Judicial Conduct. Both provide that judges must “hear and decide matters assigned,” unless disqualified for lack of impartiality. The code does not address the enforcement of an unconscionable law.

Contemporary lawyers in New York, Virginia, and Minnesota are bound by nearly identical iterations of the Rules of Professional Conduct. A “subordinate” lawyer, such as a Department of Justice attorney, may act “in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.” Even so, an individual prosecutor, notwithstanding orders from above, must “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” (Italics added.)

The rules do not specifically address the predicament created by an improper or unethical directive to dismiss a case. Nonetheless, a lawyer may always withdraw or resign from “representation will result in violation of the Rules of Professional Conduct” or for other “good cause.”

Given that latitude, it is not hard to imagine a prosecutor reflecting on Loring’s rationale: “If I resign, even for the best of reasons, cases in this office will be left in the hands of lawyers who may be less experienced or more overburdened than I, and perhaps without my willingness to resist unethical orders.”

That can be a compelling argument. The Department of Justice will continue to pursue Trump’s agenda, with or without any particular prosecutors. Trump has shown time and again that he does not care about resignations, as is Bondi, and both have been more than willing to fire non-sycophants.

On the other hand, as Loring learned, complicity is complicity. Likewise, conscience is conscience.

[Source note: Material on the Fugitive Slave Act and the Anthony Burns case is found in Steven Lubet, Fugitive Justice: Runaways, Rescuers, and Slavery on Trial.]

Steven Lubet is Williams Memorial Professor Emeritus, Northwestern University Pritzker School of Law. You can reach him by e-mail at slubet@law.northwestern.edu.