"Where Were the Lawyers?"

 The bizarre episode this past week, in which the Trump administration briefly appeared to shut down all federal domestic spending, seems—increasingly—to have all come down to confusion over a comma. The incident began, we may recall, with an internal memo from the acting director of Trump's Office of Management and Budget. The memo contained one crucial—yet opaque—operative provision: it ordered everyone in the executive branch to freeze "all Federal financial assistance, and other relevant agency activities that may be implicated by [Trump's recent] executive orders."

Read that sentence again, and tell me: does the phrase "that may be implicated by" modify the phrase "all Federal financial assistance"? The administration swore that it did. In a "clarification" issued the next day—which really only took one "from darkness to darkness," to borrow a phrase from Oscar Wilde—OMB insisted that the original memo had only required a pause on that assistance which was implicated by the executive orders (though no one knows what that may have been either—since there are no federal grants that go by the proscribed names of "green new deal," "transgenderism," etc.)

But if that is indeed what they had meant to say—then that comma in the original sentence is in the wrong place. Following the "rule of last antecedent" as we learned in statutory interpretation class—if they meant for the adjectival phrase to modify both items in the series, then they should have added another comma. Instead of saying "all Federal financial assistance, and other relevant agency activities that may be implicated by [Trump's recent] executive orders"—they ought to have written "all Federal financial assistance, and other relevant agency activities[, which] may be implicated [etc.]"

These are the moments when people are tempted to ask: "didn't they have a lawyer around to review this?" Indeed, I asked myself the same question. But the New York Times assures us that not only was the memo reviewed by an attorney—it was written by one. "The order was drafted inside the Office of Management and Budget by the agency’s general counsel," the Times reports. So—we can't blame the misplaced comma on a dearth of professional help. This was no lay person's botched job. This was someone ostensibly hired to root out legal ambiguities and establish clear standards for compliance. 

But this, too, should perhaps not surprise us. I thought back to a passage from the second volume in Samuel Beckett's famous Trilogy, in which a pair of proud parents aim to secure their child's admission to medical school—despite a pronounced lack of intellectual promise. The parents, writes Beckett, had faith that mere admission would ensure their son success in all that followed—for, "they felt that a more or less unintelligent youth, once admitted to the study of these professions, was almost sure to be certified, sooner or later [....] For they had experience of doctors, and of lawyers, like most people." 

In other words, lawyers and other professionals—and, to Beckett's point, our own daily experience confirms this—may be no more exempt than the Secretary of Transportation, say, from the great law of the Trump administration. In other words: they, too, may be idiots.