Last month, the Trump administration revealed its latest effort to break down methods of accountability intended to curb the Department of Justice’s abuses of power. The department proposed a rule that purports to give the attorney general authority to prevent state bar disciplinary authorities from investigating current or former DOJ attorneys for as long as the DOJ chooses to review those allegations. It is an attempt to shield DOJ attorneys suspected of violating ethics rules from oversight by state bar disciplinary bodies.
Several state bar associations, including in Illinois and New York, recognizing their important role in investigating attorney misconduct — including by DOJ attorneys — have publicly opposed the DOJ’s proposed rule. The Brennan Center also filed a comment opposing the rule. Should the Justice Department be able to shield its misconduct from any meaningful oversight, it will allow the administration to abuse the DOJ’s immense power with impunity and further erode public trust in the justice system.
The proposed rule follows other efforts the second Trump administration has taken to dismantle the DOJ’s internal accountability systems, including weakening its Office of Professional Responsibility and eroding whistleblower and civil service protections, and to attack its external accountability systems. The administration, for example, has sought to undermine the judiciary through public attacks and calls for the impeachment of judges who rule against it.
DOJ attorneys wield immense authority in investigations, criminal prosecutions, and civil enforcement actions. They are also involved in executive branch actions in two other significant ways. First, they represent the federal government in court to defend an administration’s programs, policies, regulations, and actions. Outside of court, the legal advice of DOJ attorneys, including from the department’s Office of Legal Counsel, often provides legal backing for the executive branch’s most consequential actions.
These powers have always been susceptible to abuse, and the modern system of checks to prevent those abuses relies on both internal and external safeguards. One of these external safeguards is state bar disciplinary bodies, which enforce baseline duties of honesty, good faith, and respect for the law on all attorneys — including DOJ attorneys — as part of each state’s licensing system for lawyers. These ethical rules are not merely aspirational. They function as enforceable constraints designed to prevent misconduct in the legal profession and to maintain public confidence in the legal system.
State Bar Disciplinary Systems’ Role in Constraining DOJ’s Abuses of Power
All attorneys must be licensed to practice law and are bound by a variety of rules and standards enforced by state and federal courts and bar authorities. That regime ensures that government lawyers are subject to independent ethical constraints. Congress reaffirmed this when it passed the McDade Amendment, which requires DOJ attorneys to comply with the professional responsibility rules of the states in which they practice “to the same extent and in the same manner as other attorneys in that State.”
To be sure, state bars have faced criticism for their lack of transparency, slowness in resolving misconduct complaints, and failures to pursue complaints at all. During this administration, for example, state bars have declined to pursue complaints against former Acting Deputy Attorney General Emil Bove and former Attorney General Pam Bondi. Still, the authority of state bars to revoke an attorney’s license, which affects a DOJ attorney’s ability to practice law, including after leaving the department, can serve as a significant deterrent against misconduct. Accordingly, state bar authorities, along with the judiciary, are critical external checks against abuses of power by DOJ attorneys.
State bars and the DOJ’s Office of Professional Responsibility, which is responsible for receiving and investigating allegations of DOJ attorney misconduct, have historically had a collaborative relationship. If the DOJ, for example, investigated a matter and determined that one of its attorneys committed misconduct, it might refer the matter to the attorney’s state bar for further discipline. Conversely, state bars might refer complaints against DOJ attorneys to the Office of Professional Responsibility for an initial investigation.
State bars frequently defer to the DOJ to investigate alleged misconduct by its attorneys because such cases often implicate other federal regulations and DOJ rules that state bars are not familiar with. They might also require consideration of potentially confidential and highly sensitive information in only the department’s possession. When the Office of Professional Responsibility is investigating a matter and a state bar receives a complaint regarding the same matter, the DOJ may suggest the state bar wait until the DOJ finishes its investigation before the bar starts its own, at which point the DOJ might share the results of its investigation with the state bar.
Such deference, however, is voluntary. State bars can also investigate misconduct and impose disciplinary measures after an attorney leaves the DOJ. In one prominent example, the District of Columbia Bar investigated former Assistant Attorney General Jeffrey Clark after he left federal service for trying to use the DOJ’s influence to help reverse Trump’s election defeat in 2020. By contrast, the Office of Professional Responsibility may be stymied in investigating and disciplining misconduct when the attorney being investigated leaves the DOJ and is no longer bound by the department’s rules requiring cooperation in such investigations.
Trump Administration Efforts to Undermine State Bar Disciplinary Authorities
Overview of Proposed Rule
On March 5, the Department of Justice issued a proposed rule on the “Review of State Bar Complaints and Allegations Against Department of Justice Attorneys” that would turn its long-standing collaborative relationship with state bars on its head. The proposed rule aims to have the attorney general take control of the timing, scope, and development of state bars’ misconduct investigations against DOJ attorneys, effectively insulating the DOJ from independent scrutiny by state bars.
The proposed rule purports to confer to the attorney general the “right” to review state bar complaints against “current or former” DOJ attorneys “in the first instance.” Whenever the attorney general intends to exercise this “right,” the proposed rule provides that the DOJ will notify the state bar disciplinary authorities and request that they suspend their investigations or disciplinary proceedings while the DOJ completes its own review. During that review, the proposed rule explains, the DOJ will order its employees not to provide nonpublic information to state bar investigations or disciplinary proceedings, effectively undermining the state bar’s oversight. Moreover, the proposed rule provides no timeline within which the DOJ must complete its review, creating the risk that the DOJ will indefinitely delay investigations or simply ignore credible allegations of attorney misconduct.
Notably, the proposed rule frames the suspension notice as a request, which suggests it recognizes the DOJ has no legal basis to require state bars to stop their investigations. And yet it says that if state bar disciplinary authorities “refuse the Attorney General’s request,” the Justice Department will take “appropriate action” to “enforce this regulation” or prevent them from “interfering with the Attorney General’s review of the allegations” — a provision legal ethics scholars have described as a “threat.”
This type of threat against state bars has taken on heightened salience following the Trump administration’s attacks on universities and law firms and its willingness to abuse the DOJ’s criminal and civil powers to pursue personal vendettas.
Legal Barriers to What the Proposed Rule Purports To Do
The proposed rule contradicts the framework established by Congress. Under the McDade Amendment enacted in 1998, DOJ attorneys must comply with the professional responsibility rules of the states in which they practice. Congress therefore sought to impose exactly the sort of independent accountability mechanism the DOJ is now trying to evade.
As early as 1990, Congress expressed concerns about “the problems inherent in any system of self-policing and regulation” relating to the DOJ. A bipartisan majority of Congress, evidently frustrated by the perceived lack of an effective mechanism to prevent prosecutorial abuses relating to an independent counsel and other DOJ attorneys, passed the McDade Amendment at the end of that decade. The law’s purpose is to place DOJ attorneys under the same constraints and oversight as other attorneys in the states in which they practice.
In passing the McDade Amendment, Congress rejected the DOJ’s arguments that the attorney general had the authority to preempt state ethics rules and state enforcement. The DOJ had argued that requiring its attorneys to be subject to state ethics rules in which they practice would “silently overrid[e] the Attorney General’s power in this area,” and could impede its federal law enforcement operations, such as undercover investigations. Congress disagreed, siding with courts and legal organizations, and made clear that state bar disciplinary bodies can investigate and sanction DOJ attorneys, even if the attorney general opposes a particular state ethics rule.
Court Orders and State Bar Complaints Addressing DOJ Abuses of Power
The context in which the current administration issued the proposed rule is critical to understanding its intended effect. The administration has pushed the bounds of the ethical duties and obligations that are binding on its lawyers, and other actors in the legal system have taken note.
Courts, for example, have questioned DOJ lawyers regarding hundreds of instances of the federal government’s noncompliance with court orders and misrepresentations of fact and law in court. Some courts have taken the rare step of quashing the DOJ’s subpoenas, including three federal district courts that blocked the DOJ’s demands for medical records of children receiving gender-affirming care. One of the courts noted that the “DOJ has abandoned good faith investigation in favor of policy enforcement through prosecutorial coercion.” DC District Court Chief Judge James Boasberg quashed DOJ subpoenas issued to the Federal Reserve, pointing to “abundant evidence” that the subpoenas’ purpose was to “harass and pressure” Federal Reserve Chair Jerome Powell into lowering interest rates or resigning.
In addition, grand juries have made the rare move of declining to return indictments sought by the DOJ. New York Attorney General Letitia James was indicted days after the president demanded that his attorney general act quickly against her. After a federal judge dismissed that indictment, the DOJ sought to prosecute James again, but two separate Virginia grand juries, in Norfolk and Alexandria, refused to do so. After a Washington, DC, grand jury rebuffed the DOJ’s efforts to indict six sitting members of Congress for a video message urging members of the military and intelligence communities not to comply with unlawful orders, Chief Judge Boasberg issued an extraordinary order requiring grand juries in the district to notify the court whenever they reject the DOJ’s attempts to indict defendants. The order will make it easier for the court to track when the DOJ presents cases that a grand jury finds insufficient to meet even the low probable cause standard required to secure an indictment.
Efforts to Dismantle Oversight of the DOJ
External oversight mechanisms — particularly by courts and state bars — have become increasingly important as the DOJ’s internal restraints against abuses of its authority have been systematically dismantled. Consequently, the current administration has turned its attention to undermining these remaining safeguards, and the proposed rule fits squarely within this broader effort.
In addition to weakening internal oversight offices and undermining protections for whistleblowers, the DOJ has pushed out career staff, including ethics officials, who might push back on attempts to abuse the department’s power.
The breakdown of internal checks has resulted in senior DOJ leaders focusing on eliminating external constraints, such as those imposed by the judiciary. For instance, Acting Attorney General Todd Blanche has described being at “war” against federal judges who have not ruled in favor of the administration, accusing them of being “activist” and “political.” His statements prompted sharp criticism from the New York State Bar Association and former federal judges appointed by both Republican and Democratic presidents.
An additional example of the administration’s efforts to undermine the judiciary’s ability to curb the DOJ’s abuses of power is its public attack on judges. The Trump administration and its allies have called for the impeachment of several federal judges who have ruled against the administration. The DOJ even filed an ethics complaint — which was subsequently dismissed — against Chief Judge Boasberg days after he indicated he might initiate disciplinary proceedings against DOJ lawyers. He had determined the Trump administration appeared to have acted “in bad faith” when it raced to deport immigrants to a Salvadoran prison.
Like judges, state bar associations are also increasingly being called upon to act to curb the DOJ’s abuses of power, including through bar complaints against DOJ leaders. At least one case has resulted in bar charges being filed against Ed Martin, former interim U.S. attorney for Washington, DC, by the disciplinary council for the DC Bar.
As state bar authorities have gained increasing prominence as a potential check on DOJ abuses, Blanche and others have ratcheted up attacks on them, just as they have against judges. Blanche, for example, derided state bars that received complaints against its attorneys, promising “to do everything we can to take these activist bars . . . out of the picture.” He appeared to preview the proposed rule when he said he planned to start a new system where state bar complaints against DOJ attorneys would be handled “in-house” within the department’s own ethics unit, referencing the Office of Professional Responsibility that has been neutered by the current administration.
As other actors in the legal system have increasingly noted the DOJ’s failure to abide by its ethical duties and obligations, it is all the more critical to ensure that state bar associations, courts, and Congress can serve as nonpartisan, external checks on abuses of the DOJ’s authority. The DOJ must not be able to shield its misconduct from meaningful oversight. Allowing the department to avoid such oversight risks further abuses of its immense power and greater erosion of public trust in the justice system.
