The DOJ wants to change who polices federal prosecutors : NPR

The Justice Department wants to oversee the discipline of its attorneys — even as government lawyers face more questions from judges and watchdogs about their conduct.

A DOJ rule that would allow the attorney general to step in and potentially delay state bar investigations into federal prosecutors has sparked a flurry of comments from attorneys general around the country, as well as from former prosecutors, legal ethics experts and judges.

Critics say allowing the department to delay or sideline state investigations weakens one of the last independent checks on government lawyers.

Michael Frisch, ethics counsel at the Georgetown University Law Center, sees this move “as part of a broad attack on the rule of law and … on the concept that lawyers should be ethically accountable for their actions. I think there’s a great concern that these attempts to avoid accountability will de-legitimize the processes that have traditionally regulated lawyers.”

Additionally, he said, it violates a 1998 federal law called the McDade-Murtha Amendment. That means any rule — once finalized — could be subject to legal challenge.

Under the current system, federal prosecutors can be subject to investigations by state bar associations, which license and discipline all attorneys. The proposed change would give the attorney general power to request a first review of complaints filed against current or former federal prosecutors for their actions while working for the agency.

Justice Department officials say the move is necessary to address what they describe as a recent surge in politically motivated bar complaints targeting government lawyers.

They point to recent complaints filed against former Attorney General Pam Bondi in Florida over claims she pressured DOJ attorneys to “act unethically.” President Trump’s “pardon attorney” Ed Martin is also facing disciplinary proceedings with the Washington, D.C., bar over allegations he broke several ethics rules including violating his oath of office after swearing to support the Constitution.

The DOJ says the rule is needed because “over the past several years, political activists have weaponized the bar complaint and investigation process,” citing the bar complaints filed against senior department officials.

“This unprecedented weaponization of the State bar complaint process risks chilling the zealous advocacy by Department attorneys on behalf of the United States, its agencies, and its officers,” the DOJ said in its proposed rule. “That chilling effect, in turn, would interfere with the broad statutory authority of the Attorney General to manage and supervise Department attorneys.”

The DOJ said the effort follows Trump’s executive order, announcing that the policy of the United States is “to identify and take appropriate action to correct past misconduct by the Federal Government related to the weaponization of law enforcement.”

Frisch, from the Georgetown University Law Center, acknowledged concerns about politicization but said existing systems are designed to handle them.

“It’s an unfortunate byproduct of the times we live in that everything seems politicized, from religion to politics to state bar regulation,” Frisch said.

The rule was proposed while Bondi was still leading the department; she’s since been removed from the role. Legal observers who spoke to NPR say they expect Acting Attorney General Todd Blanche to continue pushing to finalize it. The Justice Department did not respond to questions about its plans.

Escalating tension over government attorneys’ actions

Tensions between the Justice Department and state bar regulators aren’t new, said Susan Carle, law professor at American University.

Both the Bush and Clinton administrations rolled out policies that exempted federal prosecutors from some state ethics rules, including the “Reno Rule” from Clinton-era Attorney General Janet Reno.

But those efforts faced major challenges, including from Congress, which ended up blocking the efforts.

Lawmakers noted in hearings and floor debates around that time that they’d witnessed instances of federal prosecutorial abuse and the reluctance of courts to prevent or correct those abuses as they came up. And the DOJ continued to argue more regulation to control federal prosecutorial discipline wasn’t necessary.

Congress passed legislation to make it clear that states had responsibility and authority to apply their ethics rules to federal prosecutors in their states. The issue was largely settled in 1998, with the McDade-Murtha Amendment, requiring federal prosecutors to follow state and local federal court rules of professional responsibility in the states where they worked.

So this new effort by the DOJ “clearly violates” that amendment and thus federal law, Carle said.

Concerns about politicization of discipline proceedings have only deepened in the last few years — especially after some attorneys, including a senior leader at the Justice Department, attempted to help Trump overturn the results of the 2020 election that he lost.

Attorney John Eastman was disbarred by a California court last week for his role in Trump’s legal fight to stay in power after 2020. Eastman said he plans to take his appeal to the Supreme Court.

Rudy Giuliani lost his law licenses in New York and Washington, D.C., for similar conduct tied to the “fake elector” scheme.

And Jeffrey Clark was a senior DOJ attorney and head of several departments when he attempted to oust then-acting Attorney General Jeffrey Rosen to help Trump overturn the election results. A D.C. disciplinary appeals board recommended last summer that Clark be disbarred for “flagrant dishonesty;” the DOJ is still fighting that recommendation.

Additional complaints over the last year

Since Trump returned to the White House, officials at the DOJ have also faced disciplinary proceedings, including against Martin, the pardon attorney, who’s tried to move his disciplinary case to federal court and out of the D.C. bar’s proceedings.

Lawyers Defending American Democracy, a broad coalition of lawyers, judges and legal groups, was formed in the wake of Trump’s efforts to challenge the 2020 election. It’s been behind several ethics complaints against DOJ officials, including the complaint against Bondi over allegations that she compelled DOJ lawyers to violate their ethical obligations and pursue political objectives.

The Florida Bar declined to investigate the issue and Bondi, who Trump removed on April 2, remains in good standing in the state.

Chris Swartz, senior ethics counsel at the advocacy group Democracy Defenders Fund, which is part of the Lawyers Defending American Democracy coalition, said his group plans to file another complaint against her.

Lawyers Defending American Democracy earlier this month also filed an ethics complaint with the DC Bar against Drew Ensign, the lead at DOJ’s Office of Immigration Litigation of the Civil Division. The group says Ensign misled courts, disobeyed court orders and failed to intervene when lawyers under his supervision engaged in misconduct. (A federal D.C. judge, James Boasberg, had separately also investigated whether Ensign and other DOJ attorneys were guilty of contempt of court in an immigration case, before an appeals court blocked the move.)

The D.C. Bar has not indicated whether it’s investigating the complaint against Ensign.

Supporters of the proposed rule say this growing wave of complaints against attorneys points to the need to change the system. Among them is America First Legal, a conservative group founded by White House Deputy Chief of Staff Stephen Miller. In comments on the proposed rule, the group urged the DOJ to go even further and give itself exclusive authority over ethics complaints.

“Political activists have weaponized the bar complaint process to chill zealous advocacy by current and former federal government attorneys,” the group wrote, pointing to cases against Clark and Martin.

Other supporters include a group of 14 Republican state attorneys general, who in their their public comment letter brushed off concerns that the rule would interfere with states’ rights.

“The rule offers a more uniform approach to attorney ethics that also balances the States’ interests in maintaining regulatory authority over attorneys practicing in our courts,” they wrote.

“We’re deeply concerned about how politically motivated people or groups might try to influence the DOJ’s advocacy by threatening bar complaints,” they wrote, echoing the DOJ’s reasoning. “Although DOJ attorneys have never been immune from this brand of lawfare, they have recently been targeted more often.”

Critics of the rule 

Critics of the proposal including mostly Democratic state attorneys general and the American Bar Association warned the rule would erode long-standing state authority over attorney discipline — violating basic tenets of federalism.

Judges from the Supreme Court of Georgia wrote in a public comment letter, for example, that the rule “threatens significant federal overreach into an area exclusively reserved to the States.”

“If DOJ is dissatisfied with Congress’s decision to require DOJ lawyers to be members of state bars, it should take that up with Congress,” they wrote.

Matthew Cavedon, director of the Cato Institute’s Project on Criminal Justice, agrees with the DOJ that the current state bar regulatory process is “far from perfect.” But he submitted comments arguing that the proposed rule would make the problem worse.

“Federal prosecutors … are some of the most powerful people in the country, and they are among the least accountable,” he told NPR.

“The number of prosecutors, state or federal, who’ve ever been hit with criminal charges for lying to get people sent to prison for ruining people’s lives with baseless cases is slim to none,” he said. “

The DOJ says its Office of Professional Responsibility would be “the Attorney General’s designee” for reviewing bar complaints against department attorneys internally. But critics of this effort say this internal mechanism fails to provide meaningful accountability and would protect wrongdoers from any future state bar investigation.

On top of those concerns, critics point to the fact that in the first weeks back in the White House, Trump removed the head of the DOJ’s Office of Professional Responsibility, along with the director of the U.S. Office of Government Ethics, and at least 17 independent inspectors generals at various federal agencies.

Actions since then have added to broader concerns about accountability and unchecked executive power in the Trump administration.

Swartz, with Democracy Defenders Fund, said the DOJ proposal reflects a broader pattern of efforts to “degrade, destroy and remove safeguards that are intended to be independent checks on abuses of power.”