Professor Chimène Keitner, who recently held the prestigious position of counselor on international law at the U.S. Department of State, discusses her experience spanning two administrations.
Part litigator and part policy guru, the counselor on international law is an outside expert who serves in the U.S. State Department’s Office of the Legal Adviser (L), typically with expertise in litigation involving international and foreign relations law. When UC Hastings Professor Chimène Keitner assumed that position in September 2016—bringing a rare depth of experience in international relations and international law—the widespread expectation was that Hillary Clinton would win the election. Instead, Keitner found herself with an inside view of the Trump administration’s first year. By the end of her tenure in December 2017, she had earned a lot of frequent flier miles, commuting between her family in the Bay Area and her office in Washington, D.C., and gained a new appreciation for civil servants and the immense talent and dedication of the government lawyers she encountered along the way.
Q: Please describe the types of matters you worked on.
The position ended up being a terrific fit because of my background and experience in litigation and international law.
I served as L’s liaison for our Supreme Court litigation docket, which included keeping tabs on any case with a foreign relations element or potential cross-border implications. The Justice Department routinely consults with State and other interested agencies in formulating the U.S. government’s position, whether the government is a party to a case or participating as an amicus. That was a tremendously interesting portfolio. It enabled me to get to know lawyers in various agencies throughout the government and participate in an extremely collaborative process.
I also worked on issues that fell under the Political-Military Affairs umbrella—for example, rules governing use of force and how the U.S. ensures that our conduct complies with those rules. Those matters require close coordination with the Department of Defense and lawyers at the National Security Council, among others.
In addition, I dealt with issues of treaty law, including how best to structure various cooperative endeavors that we might engage in with other countries, and the domestic and international implications of entering into various types of agreements.
I also worked on matters before international tribunals. L represents the U.S. in international dispute resolution, including before the International Court of Justice in The Hague.
Q: Based on your experience at the State Department, can you speak to the role of civil servants in today’s hyper-politicized climate?
I now have a deeper sense of what it means to be a civil servant, even in a time of political transition. People who go into civil service understand they will be working in different administrations, and that their personal views may or may not coincide with those of any particular occupant of the White House. Their loyalty is to the U.S. Constitution and to the rule of law, not to a political party or individual.
Although some people refer disparagingly to the “bureaucracy,” coherent process really does matter to effective governance. It was especially challenging to navigate an administration that publicly disregards process. The Obama White House had a reputation for micromanaging, but the current White House often has the opposite problem. I think it’s much more difficult in this administration to get a sense of coherent decision-making on national security matters, and it’s difficult to have confidence that the implications of certain high-level decisions have actually been thought through, whether or not one agrees with them.
In both administrations, it was incredibly fulfilling to partner with the phenomenal attorneys at State and across the government. Lawyers in academia, private practice, and the nonprofit sector are often more public-facing in their individual capacities than career government lawyers, who are generally not motivated by and don’t seek personal credit for the work they do, which often remains invisible to the general public.
Q: What have you brought back to UC Hastings from your experience at State?
I have a better understanding of the inner workings of the administrative state. Even though I don’t teach administrative law—UC Hastings has other amazing professors who do—I gained an appreciation for the role of the bureaucracy in the day-to-day running of our country. I’ve always been very interested in studying and writing and teaching about what happens in courtrooms, but so much of our daily lives is governed by what happens within government agencies. While at State, I gained a better appreciation of the importance of law outside of the courts.
Thanks to my experience in D.C., I have a renewed appreciation for the value of collaboration among lawyers, both because being part of a team is personally enriching and because it produces better work product. As our students start to forge their own career paths, I’d encourage them to find a work environment that fosters genuine collaboration.
Listen to Professor Chimène Keitner’s March 31, 2018, interview about her experience at the State Department on the Lawfare Podcast.