(L-r) John C. O'Quinn, partner at Kirkland & Ellis; David W. Ogden, partner at WilmerHale; Theodore Cooperstein, general counsel to the Office of Personnel Management; Stuart F. Delery, partner at Gibson Dunn; and G. Roger King, senior labor and employment counsel at the HR Policy Association, spoke Tuesday on a Federalist Society panel about the role and responsibility of government employees. Photo: Diego M. Radzinschi/ALM

Any change in a presidential administration puts pressure on career government employees to support new political bosses and policy directives that may not align with personal beliefs and prior practices, teeing up questions about whether to quit or fall in line.

“I think it's a very difficult time to be a government lawyer—put aside your political beliefs and how you feel about this administration. Lot of challenges,” said G. Roger King, senior labor and employment counsel at the HR Policy Association. On Capitol Hill, he said, where he was a lawyer in the U.S. Senate, “it's somewhat like 'Game of Thrones'—you figure out what's going on and you have a duty of loyalty to whoever you're working for.”

Tuesday's panelists at the Federalist Society event—the speakers also included former Obama-era U.S. Justice Department officials David Ogden and Stuart Delery—didn't talk about any specific instance of tension or resistance tied to the Trump administration. Still, in the early months of the new administration career employees took to social media, anonymously, to voice displeasure and resistance to various policy measures.

“The basic structure of the government is that a small number of political appointees and the president basically run the place,” said Ogden, a former deputy U.S. attorney general who leads the government and regulatory litigation team at Wilmer Cutler Pickering Hale and Dorr. “There are some folks who forget when they are running the agency that their duty is to the law—and to the legally defined interests of the agency. And I think it's occasionally the case that we have career folks who forget they are supposed to do what they're asked to do.”

Delery said consistency is key, whenever possible. A single agency's wishes should not determine government-wide litigation interests, he said. The Justice Department solicits widely the views of many agencies “to forge consensus,” said Delery, a Gibson, Dunn & Crutcher partner and former acting associate attorney general.

Career lawyers at the DOJ and other agencies “brought, in my experience, invaluable perspective to bear—institutional perspectives, a sense of history.” Delery called attacks on the motivations of career lawyers “troubling”—”and not in the interests of the United States as a whole.”

King said Republican administrations—which generally might look to diminish the size of the government—tend to face more challenges with career employees in Washington given the metropolitan era skews Democratic. Greater partisanship in Washington “has become so intense that the resistance to policy change, appears to me, has increased,” he said.

Ogden said some of the hardest challenges for career government employees come in the confrontation between what is legal and what is not legal.

“If you are in any organization, whether it's the government or a corporation or a law firm and you believe that what's going on around you is illegal, I think that changes your calculus,” Ogden said. “The first obligation is to raise your views within the organization in the most effective way you know how to do. If you feel that your views are not welcome or have been rejected … then there's a question of, do you resign? What is your obligation to tell somebody about it and who do you tell? The idea that you're not supposed to tell anybody is probably not right.”

Generally, Ogden said, an employee who is given a direction that you don't agree with either can carry it out or quit. “That's not an easy rule—but it's the right way to go as a general matter,” he said.

The panelists also addressed the issue of leaks by government employees.

Ogden said leaks, from his view as a longtime Washington lawyer, are more often driven by a personal agenda than political. “They want to be portrayed in a certain way. They want somebody else to be portrayed in a certain way. They want to have some impact on their reputation or somebody else's reputation for personal reasons. The overwhelming majority of leaks that are happening now are driven by that.”

Ogden called leaks “lamentable” and said they have a “corrosive” effect on how institutions work.