The Department of Justice’s Broken Accountability System

Attorneys in the U.S. Department of Justice (DOJ) must comply with the professional and ethical standards set forth in department regulations and policies, state bar rules, and federal law. Since January 20, however, the second Trump administration has systematically dismantled the DOJ’s internal controls that help ensure compliance with these standards. This paper explains what those internal accountability systems were, how the administration has broken them, and how courts are grappling with the consequences as they confront a DOJ presenting questionable legal positions and assertions of fact, evading court orders, and overstepping its prosecutorial authority.

Over the past several months, federal judges appointed by both Republican and Democratic presidents have accused DOJ lawyers in the current administration of failing to meet their basic professional and ethical obligations to act honestly, lawfully, and in good faith.¹ One judge accused DOJ lawyers of gaslighting her court. Another initiated contempt proceedings to determine whether administration officials had violated his court orders.² In dozens of cases, as recently cataloged by Just Security, courts have demonstrated concern over noncompliance with judicial orders or distrust of government information and representations. This trend has appropriately alarmed the legal community and underscored the need to fix the DOJ’s now broken accountability system and fill in the gaps in the interim.

DOJ attorneys historically have benefited from presumptions of regularity and good faith in federal courts. Under the presumption of regularity, courts assume that federal government officials, including DOJ attorneys, “have properly discharged their official duties” unless there is “clear evidence to the contrary.” In other words, courts have generally taken as given that factual representations by DOJ attorneys have been vetted and are accurate and that their legal positions are well supported by the law and the facts. Some courts have also understood a related presumption of good faith, which assumes a government attorney is acting with proper intentions. While these presumptions may be overcome, until recently courts have rarely found cause to do so.

For decades the professionalism and competence of DOJ attorneys themselves have maintained these presumptions. That is in part due to the formal and informal internal accountability systems the department developed in the wake of the Watergate scandal to serve as checks against abuses of its immense powers and law enforcement authorities — accountability systems the current administration now disregards. And while DOJ lawyers are subject to the professional ethics rules of the states in which they are licensed as well as in which they practice, courts and state bars have often relied on the DOJ to regulate its own lawyers. They can no longer trust the department to check itself.

To have a functioning justice system, especially as it relates to the enforcement of federal laws, courts must be able to rely on the federal government to make arguments and representations in good faith. Ultimately, this will require rebuilding the DOJ’s broken internal accountability systems to be stronger and more resilient. But until then, other forms of accountability, such as courts, state bar associations, and Congress, must help fill this gap.

The ability to investigate and prosecute violations of federal law across the country gives DOJ attorneys remarkable power. As former Attorney General Robert Jackson explained in a famous 1940 speech:

The prosecutor has more control over life, liberty, and reputation than any other person in America. . . . He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. . . . The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard.

Even investigations or charges that are ultimately dropped can lead to serious reputational harm and considerable financial strain. Because of this power, DOJ attorneys must follow the highest standards of professional conduct and ethics and adhere to core principles of independence, principled discretion, impartiality, and fairness. Or as Attorney General Jackson put it, the role of a prosecutor is to “seek[] truth and not victims” and “serve[] the law and not factional purposes.”

Outside the prosecutorial realm, the DOJ has significant influence over the conduct of the federal government. The Civil Division represents the United States, its departments, and its agencies in federal courts, where its work includes defending challenges to federal programs and regulations. The Office of Legal Counsel provides legal advice to the president and all executive branch agencies. DOJ attorneys frequently work with agency counsel to anticipate and address potential legal challenges and then, as needed, defend those agencies in court. As the main point of contact between the executive branch and the judiciary, the DOJ helps ensure that the federal government speaks with one voice and takes consistent legal positions.

In the aftermath of Watergate, Congress and the DOJ developed and strengthened internal accountability systems to prevent abuses of the department’s immense powers. These include two separate oversight offices within the DOJ — the Office of Professional Responsibility and the Office of the Inspector General — to investigate allegations of misconduct and abuses of prosecutorial authority. Informal accountability structures emerged as well; the DOJ’s nonpartisan career workforce, which has developed over decades, has also played an important role in limiting partisan misuse of the department’s authorities.

Formal Internal Accountability

In 1975, in response to ethical abuses by senior DOJ officials during the Watergate scandal, Attorney General Edward Levi established the Office of Professional Responsibility, which is the DOJ entity exclusively responsible for investigating allegations of professional misconduct by DOJ attorneys. The office, for example, investigates allegations of DOJ attorneys making misrepresentations to the court or opposing counsel, failing to comply with court orders or departmental rules and regulations, and abusing the DOJ’s authority or prosecutorial discretion. To identify professional misconduct requiring review, the office not only relies on complaints it receives and self-reports from DOJ attorneys, but also conducts weekly searches of legal databases and takes note of media reports. The office refers its findings of misconduct to the department’s Professional Misconduct Review Unit, which assesses the referred findings and determines the appropriate level of discipline to impose. This unit may also authorize the Office of Professional Responsibility to refer the matter to the appropriate bar disciplinary authorities for action.

Congress established the DOJ’s Office of the Inspector General in 1989 as an independent, nonpartisan office within the department to prevent and detect waste, fraud, and abuse. The office is authorized to investigate allegations of criminal, civil, or administrative wrongdoing by DOJ employees; to conduct audits; and to handle sensitive investigations of DOJ operations or employees. The inspector general, for example, has looked into allegations of politically motivated investigations, misconduct involving electioneering, the improper issuance of subpoenas based on political affiliation, and mishandled probes. But Congress expressly carved out investigations of DOJ attorney misconduct, which are handled exclusively by the DOJ’s Office of Professional Responsibility. In some limited circumstances, both offices have jointly investigated, as when they probed allegations of politicized hiring of entry-level attorneys in the DOJ’s competitive honors program from 2002 to 2006.

Since Watergate, DOJ abuses of authority and efforts to politicize the department have been relatively limited — until now. To be sure, the Office of Professional Responsibility and the Office of the Inspector General have been criticized for providing insufficient accountability and public transparency, but over the years they have served as important checks against attorney misconduct. In 2023, for example, the inspector general’s office investigated allegations that a U.S. attorney in the Biden administration had violated various ethical and legal obligations, sought to interfere in a local district attorney election, and disregarded policies restricting attendance at partisan political events. This led to the resignation of the U.S. attorney.

Despite criticisms, these internal investigations nonetheless have been an important source of fact finding and have had some deterrent effect. In 2008, for example, both offices jointly investigated a high-profile scandal involving allegations that the Bush administration had unlawfully fired nine U.S. attorneys seen as not “loyal” for partisan political reasons. Their report revealed information that led to heightened public scrutiny, forcing Attorney General Michael Mukasey to appoint a special prosecutor to examine whether criminal charges should be brought. The special prosecutor ultimately concluded that the actions were improperly political but not criminal. The offices also investigated allegations that DOJ political appointees had illegally politicized the hiring of career Civil Rights Division attorneys during the Bush administration. They found evidence that a DOJ official had misled Congress and referred the matter for potential criminal prosecution. Although the U.S. attorney for the District of Columbia declined to prosecute, the Civil Rights Division subsequently instituted numerous reforms to prevent politicized hiring. These high-profile investigations also served as a form of deterrence, as career DOJ lawyers could point to the possibility of internal investigations to warn political appointees of the risks of politicized decision-making.

Another by-product of the Watergate era was the Civil Service Reform Act of 1978, which enabled the DOJ to create a competent, career workforce dedicated to the nonpartisan application of its enormous powers. The law created the Merit Systems Protection Board, a new agency to adjudicate and remedy prohibited personnel practices against federal workers, such as whistleblower retaliation, discrimination based on political affiliation, and politicized employment decisions. The act also created the Office of Special Counsel to investigate such practices and to securely receive whistleblower disclosures. In certain circumstances, the special counsel can require the agency head, such as the attorney general, to investigate allegations of misconduct reported by a whistleblower.

The law also granted both offices the authority to issue subpoenas, unlike the DOJ’s Office of Professional Responsibility, which lacks subpoena authority, and its Office of the Inspector General, which can issue administrative subpoenas for documents and records but lacks  authority to compel testimony from non-DOJ employees. By strengthening the civil service and creating a system to address improper political influence, the Civil Service Reform Act helped foster an informal accountability system of career DOJ employees dedicated to nonpartisan application of the department’s powers and authorities.

The Watergate scandal also prompted Congress to strengthen compliance with ethical standards by passing the Ethics in Government Act, which, among other things, created the Office of Government Ethics to oversee the federal ethics program, including at the DOJ. The DOJ Departmental Ethics Office works with designated agency ethics officials in each DOJ component to ensure compliance with federal laws and regulations addressing financial, personal, and political conflicts of interest. The head of the office is a career official who is responsible for making ethics recommendations to senior department leadership, including the attorney general and the deputy attorney general.

In addition, a career associate deputy attorney general — the highest-ranking career attorney in the department — is responsible for making ethics determinations involving high-level DOJ officials, including those relating to partiality and improper political influence. This official also reviews disciplinary recommendations for attorney misconduct that has been investigated by the Office of Professional Responsibility, as well as referrals for discipline or prosecution from the inspector general. Given the highly sensitive nature of these responsibilities, this official is typically a deeply experienced career DOJ attorney who has demonstrated the highest levels of integrity and nonpartisanship and is trusted by and relied on by administrations of both political parties.

Informal Internal Accountability

In addition to its formal accountability mechanisms, the DOJ has long had two key informal checks against partisan abuses of power: a dedicated career workforce committed to nonpartisanship, and a declared set of institutional values — centered on impartiality, independence, integrity, and honesty — that have been baked into the department’s processes, policies, and norms over several decades.

In the aftermath of Watergate, Attorneys General Levi and Griffin Bell rebuilt the DOJ’s career workforce and modernized the department. They regularly articulated the principles of prosecutorial independence, fairness, and integrity and set up consistent policies and procedures to ensure that DOJ attorneys followed those principles when they handled cases and exercised prosecutorial judgment. These tenets evolved into the Principles of Federal Prosecution, which were incorporated into the Justice Manual, a detailed handbook that sets forth the department’s internal policies and procedures and standards of conduct that have guided generations of DOJ attorneys. And buttressed by the protections of the Civil Service Reform Act, the DOJ’s career workforce has reinforced these institutional values in its countless deliberations over investigative and prosecutorial decisions with its politically appointed leadership, the vast majority of whom have shared these principles.

When leaders have not abided by these principles, career attorneys have sometimes formally withdrawn from a case or resigned from the department, prompting public scrutiny and external accountability. In 2020, for example, the DOJ’s political appointees intervened to drop the case against President Trump’s ally Michael Flynn, who had already pleaded guilty to lying to federal investigators. A career prosecutor withdrew from the case, and in a stark departure from DOJ practice, only a political appointee signed the request to dismiss the case filed in court. This prompted congressional demands for an investigation by the Office of the Inspector General, and the federal judge overseeing the case took the rare step of appointing a retired judge and former federal prosecutor to review the matter and advise the court. Although the retired judge argued that the department’s efforts to dismiss the case reflected a “gross abuse of prosecutorial power” and urged the court to move forward with sentencing Flynn, the court ultimately dismissed the case because the president had pardoned him.

Similarly, early in the current administration, seven highly respected career prosecutors resigned from the U.S. Attorney’s Office in Manhattan and the DOJ’s Public Integrity Section after political leadership ordered them to dismiss corruption charges against New York City Mayor Eric Adams, allegedly so he would support the president’s immigration enforcement efforts. In resigning, Danielle Sassoon — a career federal prosecutor chosen by the current administration to temporarily serve as U.S. attorney for the Southern District of New York — explained that she could not “agree to seek a dismissal driven by improper considerations,” stating that her duty as a prosecutor meant “enforcing the law impartially, and that includes prosecuting a validly returned indictment regardless [of] whether its dismissal would be politically advantageous.”

High-profile resignations invite public scrutiny of any attempts to use the DOJ’s prosecutorial authority for political purposes, yet most of the department’s informal accountability comes in the form of internal deliberations with career attorneys. They weigh in on numerous enforcement decisions with the aim of ensuring impartiality and consistency with long-standing DOJ norms and positions. Indeed, the president’s allies have perceived this informal check as a significant obstacle to implementing the president’s agenda, complaining that career lawyers stymied his agenda in his first term.

Taken together, these formal and informal internal controls have served as significant safeguards against partisan abuse of the DOJ’s power. And while these safeguards have had room for improvement, this administration has removed accountability measures, not sought to improve them.

Soon after assuming office, the second Trump administration demonstrated that it would not let these checks against partisan and personal misuse of the DOJ’s authorities stand in the way of its agenda. The administration quickly sought to systematically dismantle them.

Neutralizing the Office of Professional Responsibility

In the first weeks of the administration, the DOJ’s political appointees ousted several key senior career officials, including the head of the Office of Professional Responsibility, who had been appointed to his position in Trump’s first term and had served at the DOJ for nearly 38 years. By firing the leader of the office, the political appointees chilled any potential internal oversight of professional and ethical misconduct by DOJ attorneys, including investigations into false representations in court and failure to comply with court orders. More than eight months later, the administration has yet to identify the new leader for the office.

Weakening the Office of the Inspector General

Within days of Trump assuming office, White House officials fired at least 17 inspectors general across the government without providing the legally required 30-days’ notice to Congress. These inspectors general had served as internal checks on abuses of power within executive agencies. While the DOJ’s inspector general, Michael Horowitz, remained in his role until June 2025, the mass firings created a chilling effect over that office as well. One former DOJ inspector general publicly expressed disappointment that his former office had shown “no evidence of any serious investigative activity in the face of highly publicized allegations of misconduct” by the current administration. In May 2025, when a whistleblower filed a complaint with the Office of the Inspector General including evidence that a senior DOJ appointee oversaw an effort to mislead judges and circumvent court orders, the complaint went unnoticed for more than two months, until the filing drew public scrutiny. And recently, the Trump administration’s budget officials defunded the Council of the Inspectors General on Integrity and Efficiency — the umbrella entity that coordinates and oversees the federal inspector general community, including the DOJ’s inspector general’s office — by preventing it from using its congressionally approved funding for the upcoming fiscal year.¹

Stifling Dissent

From her first day in office, Attorney General Pam Bondi signaled clearly that there would be no room for dissent against the “political views or judgments” that “prevailed in the election.” She issued a new policy that any DOJ attorney who refused to sign a brief or appear in court to defend the administration’s actions would be subject to discipline or termination. Underscoring this message, DOJ leaders fired longtime career DOJ attorney Erez Reuveni after he upheld his duty of candor to the court and truthfully told a judge that the administration had erroneously deported an immigrant to a notorious prison in El Salvador. In a whistleblower complaint, Reuveni detailed his attempts to resist DOJ and White House leadership’s efforts to defy court orders through disinformation, lack of candor, and deliberate delay. Under prior widespread DOJ practice spanning administrations of both parties, DOJ attorneys could ask to be reassigned from a case or decline to sign briefs based on moral or ethical concerns. This internal practice had reinforced the fact that career DOJ attorneys swear an oath to the Constitution, not a particular president, and had enabled them to safely raise well-founded concerns and vet legally questionable arguments or assertions within the chain of command.

Eroding Whistleblower and Civil Service Processes and Protections

The administration eroded civil service and whistleblower protections by firing Special Counsel Hampton Dellinger, whose office, among other things, investigated allegations of politicized personnel decisions and whistleblower retaliation and handled disclosures of wrongdoing. The administration thereby effectively cut off an avenue for DOJ employees to make secure whistleblower disclosures that the department could be required to investigate. In addition, career DOJ employees can no longer rely on an independent special counsel to investigate claims of partisan personnel decisions and petition the Merit Systems Protection Board to impose corrective action on agencies or disciplinary action on federal employees.

The administration also fired Merit Systems Protection Board Chair Cathy Harris and demoted Vice Chair Ray Limon, who subsequently retired. This left the Merit Systems Protection Board with one sole Republican member and without a quorum for months to decide the thousands of appeals in cases that have been filed by career employees in this administration following the administration’s mass firings. As of May 2025, the board reported that it had received 11,166 appeals — twice its typical workload in an entire fiscal year. That means career DOJ employees who have been unlawfully retaliated against for reporting wrongdoing or discriminated against based on political affiliation would have confronted a board that could offer little recourse if they or the Justice Department challenged the initial decision of an administrative judge in their case. While Congress recently restored a quorum by confirming a Trump administration appointee to the board in a party-line vote, federal career employees must now face a board that is no longer bipartisan.  

Pushing Out Career Staff, Including Ethics Professionals

The administration has undertaken an unprecedented effort to push out career DOJ attorneys, many of whom served for decades in both Republican and Democratic administrations. Initially, the DOJ leaders reassigned nearly 20 prominent senior career officials to undesirable or sham positions, which prompted many resignations, as intended. This included the resignation of the department’s highest-ranking career official, whom administrations of both political parties had relied on to make ethics determinations and review disciplinary recommendations for attorney misconduct. The DOJ leadership replaced this highly respected 34-year DOJ veteran with two political appointees, placing highly sensitive decisions in the hands of a recent law school graduate and a former personal defense attorney for the president.

The DOJ’s political appointees also demoted or fired dozens of career DOJ employees who were perceived to be insufficiently loyal to the president or who had previously worked on prosecutions the president personally opposed. They also fired the career head of the DOJ’s ethics office, who was responsible for making ethics recommendations to senior department leadership and ensuring compliance with federal ethics laws and regulations, including those governing conflicts of interest. The intended message was clearly received — hundreds of DOJ attorneys resigned or were removed, including more than half of the attorneys in the Federal Programs Branch, which is often on the front lines of defending an administration’s priorities in court.

Since January 2025, the DOJ leadership has gutted the Public Integrity Section of the Criminal Division, an office created in response to the Watergate scandal that has combated public corruption for nearly 50 years. In the first days of the administration, it ousted the head of the office, a longtime federal prosecutor whom Trump had appointed in his first term. A few weeks later, it demanded that the public integrity unit drop corruption charges against Mayor Adams, which prompted five senior officials in the office to resign rather than comply with an order perceived to be immoral, illegal, or unethical. Since then, the DOJ leaders have suspended the public integrity unit’s authority to review potential cases against public officials to prevent politically motivated prosecutions, stripped it of its authority to file new cases, and reduced the office from 36 career lawyers to two. More recently, the Trump administration reportedly shut down a bribery probe by the public integrity unit and a U.S. attorney’s office into White House “border czar” Tom Homan, who was caught on tape accepting a bag of $50,000 in cash from an undercover FBI agent.

In the Civil Rights Division, the administration has taken an even more aggressive approach. After receiving a lukewarm response to its first “deferred resignation” offer to get career employees to resign by keeping them on paid leave for several months, the politically appointed head of the division, Harmeet Dhillon, issued controversial mission statements that spelled out her vision of the Civil Rights Division. She explained that her goal was to drive the division “in the opposite direction” from the historic work of protecting civil rights it had done for nearly 70 years. The DOJ leaders also reassigned more than a dozen career leaders to less desirable positions. When the administration issued its second deferred resignation offer and urged career staff to take it, it prompted an exodus of attorneys, resulting in an overall loss of about 70 percent of the division’s career attorneys and more than 368 of its career employees since the beginning of the Trump administration.

Since then, the head of the Civil Rights Division has spoken about the DOJ’s enforcement work in openly partisan terms. At the National Conservatism Conference, she described the DOJ’s Civil Rights Division as “the president’s shock troops,” framing its work as a battle against enemies rather than that of a nonpartisan institution seeking to apply the law impartially and fairly. She mocked Democrats, stating “the left went nuts” when she sent a letter to Texas claiming that several congressional districts were unconstitutional and demanding a response by the same date the letter was sent. Her letter went out following intense pressure from the president for Texas to conduct a rare mid-decade round of congressional redistricting to more heavily favor Republicans. And she criticized “woke” judges, suggesting they were “do[ing] something crazy” when they ruled against the administration. Such nakedly partisan public statements by a senior DOJ appointee about the department’s enforcement work would have been condemned in prior Republican and Democratic administrations.

Not surprisingly, the erosion of these accountability systems has led to more concerning behavior by the DOJ’s politically appointed leadership. Recently, for example, the president’s handpicked interim U.S. Attorney for the Eastern District of Virginia — Lindsey Halligan, his former personal defense attorney with no prosecutorial experience — brought charges against former FBI Director James Comey, just days after the president publicly demanded that the DOJ “act fast” and prosecute certain personal and political enemies, including Comey, “now.” She subsequently brought charges against New York Attorney General Letitia James, another target the president identified in his public demand. These charges were brought despite career prosecutors having informed the interim U.S. attorney that there was not enough evidence to meet even the low probable cause standard to obtain an indictment, let alone the high bar DOJ policy requires to bring charges. The prior court-appointed interim U.S. attorney, Erik Siebert, was ousted by the president after he refused to yield to the president’s pressure to charge his adversaries.

Moreover, the vast majority of the administration’s U.S. attorney appointees have not even been vetted through the standard confirmation process, despite the Senate being under Republican control. The administration has placed several of them in these roles using unusual or legally questionable work-arounds, and they are using their immense authority against political opponents and speaking in openly partisan terms. In New Jersey, for example, Alina Habba, another former personal lawyer of the president with no prior prosecutorial experience who had been named interim U.S. attorney, stated just before she took office that “we could turn New Jersey red” and expressed hope she could “help that cause” while in her new role. She is currently prosecuting a Democratic member of Congress who was conducting an oversight visit at an immigration detention facility, and she is investigating the state’s Democratic governor and attorney general for not cooperating with federal immigration authorities. A federal judge recently ruled that the administration’s maneuvers to appoint Habba to her role were unlawful, and the administration has appealed that decision.
 

Without the typical restraints imposed by the DOJ’s formal and informal accountability systems, the current department leadership has been testing the bounds of its ethical obligations and duties, and courts have been taking notice.

In a variety of cases over the past eight months, federal courts have raised the alarm about conduct by DOJ attorneys — particularly those recently appointed — who have or may have violated department rules and regulations and their professional ethical obligations. The weakening or removal of internal guardrails has resulted in at least three categories of misconduct: making false or unsupported factual representations, evading and ignoring court orders, and overstepping prosecutorial authority. In prior administrations, this kind of conduct would be expected to prompt an internal review, but there appears to be no evidence of that kind of response in this administration.

Making False or Unsupported Factual Representations

While lawyers are duty bound to advocate for their clients, they also have a professional duty of candor to the court. In other words, attorneys are expected to argue vigorously for their client’s position but to do so truthfully. As our Brennan Center colleagues have noted, “Dishonesty can include both affirmative misrepresentations and omissions of relevant facts. Abuses of power, including politicized or partisan prosecutions, will often necessitate some form of dishonesty, which would be the basis for an actual rule violation.”

An attorney’s duty of candor is required both by rules of professional responsibility and by the rules of civil procedure. American Bar Association (ABA) Model Rule 3.3(a) prohibits all lawyers from making false statements to a court, failing to correct a material false statement, or offering evidence that the lawyer knows to be false. ABA Model Rule 8.4(c) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. And Rule 11 of the Federal Rules of Civil Procedure stipulates that court filings must not be made for an “improper purpose” and that factual assertions and denials made by attorneys must have evidentiary support. The Office of Professional Responsibility has long routinely reviewed the conduct of DOJ attorneys accused of not meeting their professional responsibilities.

Courts frequently rely on attorneys’ representations, but they have often given the statements and positions of DOJ attorneys even more credence; that’s the heart of the presumptions of regularity and good faith. When the government is presumed to be following proper procedures and operating with proper motives and in good faith, DOJ attorneys need not prove those elements as part of their case. When DOJ attorneys make misrepresentations or take positions that are plainly contradicted by the public record, they violate their professional responsibilities, harm the parties to the case and the public’s trust, and do lasting damage to the department. That is happening now.

The actions of DOJ attorneys in three cases represent this trend:

American Federation of Government Employees, AFL-CIO v. United States Office of Personnel Management challenged attempts to reduce the size of the federal workforce by terminating probationary employees. At preliminary stages of the litigation, DOJ attorneys submitted a declaration from the acting director of the Office of Personnel Management (OPM) stating that OPM did not direct agencies to terminate any particular probationary employees and that it had not created a mass termination program. The government withdrew the declaration when the court directed the DOJ to produce the witness for live examination. The court described the DOJ’s evasion as “a sham.” “I’ve been practicing or serving in this court for over 50 years,” said the judge, “and I know how we get at the truth. And you are not helping me get at the truth.”

The court later ruled in favor of the plaintiffs and again criticized the DOJ for submitting an incomplete administrative record. While noting that the government typically enjoys a presumption of regularity with respect to the record it provides for the court to review, the court determined, in this case the “‘administrative record’ submitted by the government is a sham. It does not facilitate judicial review: It frustrates it.” The court also accused the government of manipulating evidence. In a filing, the government had quoted part of an email “and grafted it onto a new, fabricated context found nowhere in the relevant email chain,” the court found. The statement, it continued, “becomes, by brackets, ellipses and government counsel’s chicanery, a shot through the heart of plaintiffs’ case. Counsel’s ersatz evidence fails to persuade.”

National Treasury Employees Union v. Vought was one of several cases brought to prevent the president from eliminating federal agencies authorized by Congress, in this case the Consumer Finance Protection Bureau. The court concluded that government attorneys had submitted declarations about what was happening at the bureau that were “highly misleading, if not intentionally false” and that their conduct left the court “with little confidence that the defense can be trusted to tell the truth about anything.”

L.G.M.L. v. Noem was brought when the federal government attempted to remove possibly hundreds of unaccompanied minors to Guatemala while they were seeking protection before U.S. immigration courts. A DOJ attorney told a judge in an emergency hearing that the children were not being removed but were part of a pilot program that would repatriate the children with “parents or guardians in Guatemala who have requested their return.” The Guatemalan government assessed the families of 57 children who were to be returned to Guatemala, finding that 56 of them were not seeking repatriation of their children and preferred that they stay in the United States. The district court found that DOJ attorneys came up “short on both the law and the facts” and that their explanation of the government’s actions had “crumbled like a house of cards.”

Immigration-related cases have been replete with these kinds of factual problems during this administration, including D.V.D. v. Dept. of Homeland Security (“The Court was given false information, upon which it relied, twice, to the detriment of a party at risk of serious and irreparable harm.”); Sanchez Puentes v. Garite (“This Court takes clear offense to Respondents wasting judicial resources to admit to the Court it has no evidence, yet seek to have this Court determine Petitioner Sanchez Puentes is ‘guilty by association’”); Abrego Garcia v. Noem (“Of note, in response to the candid responses by the Government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for lack of ‘zealous[] advocacy.’ . . . But, the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney.”).

Evading and Ignoring Court Orders

DOJ attorneys, to effectively and ethically represent the federal government in court, have an obligation to counsel other federal agencies on how to comply with a court order against them. In some cases, however, DOJ attorneys now appear to be failing to comply with this ethical duty.

One of the earliest examples of DOJ attorneys facilitating evasion or noncompliance with court orders in the second Trump administration can be found in J.G.G. v. Trump, which arose out of the administration’s attempt to deport hundreds of Venezuelan men to El Salvador under the Alien Enemies Act. The judge temporarily barred the administration from removing the individuals, but the government removed the men anyway. The court then initiated contempt proceedings to determine why the administration did not comply and who was responsible. A DOJ attorney whistleblower subsequently alleged that the government’s noncompliance was intentional and may have been anticipated before any order was issued. The whistleblower also alleged that guidance explaining how to comply with the court’s orders was never disseminated in the client agency, the Department of Homeland Security.

After the Trump administration paused and canceled federal funding in areas including foreign assistance, education, criminal justice, and victim support, many grantees sued and won preliminary relief. The government appears to be slow-walking compliance with some of the court orders. In Woonasquatucket River Watershed Council v. Department of Agriculture, for example, the court ordered several federal agencies, including the Department of Housing and Urban Development (HUD), to “take immediate steps” to disburse funding under the Inflation Reduction Act and Infrastructure Investment and Jobs Act. But it took the court four status conferences over three weeks to get agencies to comply with the order. That was not the end of the story. Three months later, plaintiffs advised the court of news reports that $760 million remained frozen. In a subsequent order, the court wrote that it “struggles to see how HUD’s inaction can be construed as anything other than a serious violation of the Court’s order, one that exhibits blatant disregard for it.”¹

Courts have noted similar delays in compliance with court orders directing the release of grant funds in New York v. Trump (requiring two motions to enforce and two subsequent court orders to compel compliance), Radio Free Europe v. Lake (finding an “extraordinary record” of the government claiming to be engaged in good-faith negotiations belied by the “on-the-ground reality”), and Widakuswara v. Lake (documenting misleading and contradictory information and inadequate explanations from the government that fail to show that the agency is complying with court orders, with the court subsequently ordering depositions of senior administration officials).

DOJ attorneys have also improperly defended agency attempts to circumvent court orders by arguing that agencies can rely on different legal authorities to continue the conduct blocked by courts. In State of Washington v. Trump, a district court temporarily blocked two federal agencies from terminating funding for gender-affirming care, but the government still tried to terminate funding. The court concluded that the government’s argument defending the termination was “contrived,” “manifestly unreasonable,” “deliberately ignorant,” and “self-serving” and that it “border[ed] on violating Federal Rule of Civil Procedure 11(b).” The court authorized further proceedings to determine whether the agency had terminated the grants in violation of the court’s order. Similar evasions of court orders have been apparent in D.V.D. v. Department of Homeland Security, in which the court had to modify its order prohibiting the Department of Homeland Security from removing certain individuals from the country to also prevent the Department of Defense from doing so, to ensure that its order was not being evaded by a transfer in custody from one agency to the other. And in National Treasury Employees Union v. Vought, the court accused the administration of attempting to evade the court’s order by “dressing their [original action] in new clothes” and “thumbing their nose at both this Court and the Court of Appeals.”

Overstepping Prosecutorial Authority

DOJ attorneys have many tools to obtain evidence before a lawsuit or indictment is filed to determine whether there has been a violation of federal law. They can convene grand juries and issue criminal subpoenas and warrants, as well as issue administrative subpoenas and civil investigative demands to get evidence and build their case. A prosecutor, however, does not have free license to go on a fishing expedition to obtain evidence of wrongdoing. DOJ prosecutors are expected to abide by the Principles of Federal Prosecution and other guidance in the Justice Manual aimed at “ensuring the fair and effective exercise of prosecutorial discretion” and promoting public confidence “that important prosecutorial decisions will be made rationally and objectively.”

Under the Principles of Federal Prosecution, a prosecutor may not commence a criminal case absent a belief that the person’s conduct constitutes a federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction. The prosecutor must further determine that the matter involves a substantial federal interest, that the person is not subject to effective prosecution in another jurisdiction, and that there exists no adequate noncriminal alternative to prosecution. The Principles of Federal Prosecution are buttressed by rules of professional conduct and court rules of procedure. These rules are critical to preventing the abuse of prosecutorial power for political purposes. DOJ rules also significantly limit what prosecutors may say to the media, balancing the public’s right to know with a target’s or defendant’s rights to privacy and a fair trial. These rules are critical to preventing the abuse of prosecutorial power for political purposes.

Courts and grand juries serve as a check on how prosecutors investigate and charge cases, but because prosecutors are limited in what they can say to the public and because targets usually have an interest in keeping government inquiries private, initial investigatory steps rarely receive public scrutiny. Yet in the initial months of the second Trump administration, some courts and grand juries have openly questioned usually routine prosecutorial actions. Two high-profile examples demonstrate this trend.

First, following President Trump’s executive order “Protecting Children from Chemical and Surgical Mutilation,” the DOJ sent “more than 20 subpoenas to doctors and clinics involved in performing transgender medical procedures on children” to investigate “healthcare fraud, false statements, and more.” Boston Children’s Hospital (BCH) moved to quash the DOJ subpoena it received. The court found that the DOJ had not offered “an iota of suspicion” that the hospital had committed the offenses DOJ claimed the subpoena addressed, fraudulent billing and off-label use of pharmaceuticals. Instead, the court noted public statements by the president, attorney general, and DOJ officials and rejected a presumption of regularity or good faith. The court concluded, “It is abundantly clear that the true purpose of issuing the subpoena is to interfere with the Commonwealth of Massachusetts’ right to protect [gender affirming care] within its borders, to harass and intimidate BCH to stop providing such care, and to dissuade patients from seeking such care.”

In the second example, the Trump administration deployed federal immigration agents and the National Guard in Los Angeles and Washington, DC, leading to arrests of protesters and charges of felony obstruction of justice. Grand juries are checking prosecutors who are overcharging cases and relying on weak evidence. In Los Angeles, grand juries took the rare step of refusing to indict protesters in several cases brought by DOJ prosecutors under a Trump-appointed U.S. attorney who reportedly instructed his subordinates to disregard the Justice Manual. In Washington, DC, a grand jury refused to indict a DOJ employee for a felony count of assaulting a federal officer after the employee threw a sandwich at a federal law enforcement official, in addition to others who have been arrested for various forms of protest.

Grand juries rarely reject indictments. Establishing probable cause is a low standard, and prosecutors get to choose what evidence the grand jury will consider. One study of indictments in 2010 found that federal grand juries rejected a mere 11 indictments nationwide, accounting for just 0.036 percent of cases federal prosecutors declined to bring that year. These recent high-profile cases suggest that the grand jurors either did not trust what DOJ attorneys were saying or did not agree with the charges that were proposed by prosecutors. In other words, citizens who sit on grand juries are, like some judges, rejecting the presumptions of good faith and regularity that typically give deference to federal prosecutors in securing an indictment.

What happens in high-profile cases can affect the DOJ’s credibility in other contexts. A magistrate judge in Washington, DC, recently rejected government prosecutors’ application for three search warrants related to alleged firearm offenses and explained, “I have made over 1,000 probable cause findings in search warrants. Not once have I rejected a warrant. Until now.” When DOJ attorneys then tried to hide the decision under seal, arguing that they deserved deference in their assessment that it would impede an ongoing investigation, the judge responded: “Blind deference to the government? That is no longer a thing. Trust that had been earned over generations has been lost in weeks. Numerous career prosecutors have had to resign instead of taking actions that they believe violated their oath of office, or worse, were fired for upholding that oath. . . . These norms being broken must have consequences. High deference is out; trust, but verify is in.”
 

Over the years, courts have generally maintained the presumptions of regularity and good faith granted to the DOJ, not only because the department had systems in place to maintain that trust, but also because it had earned that trust. Post-Watergate, the department understood that maintaining public trust is essential to fulfilling its “sacred duty” to, quoting Thomas Jefferson, “do equal and impartial justice to all its citizens.” And in turn, the justice system has relied on these presumptions of regularity and good faith to manage the outsize role the DOJ plays in the justice system given the scale and scope of its actions.

But the department looks very different today from how it looked at the beginning of the year. In the past, DOJ attorneys frequently made a career of representing the United States, adhering to the department’s core principles of independence, impartiality, principled discretion, fairness, and nonpartisanship. Hundreds of those attorneys have now left, taking with them wide swaths of institutional knowledge and expectations of how DOJ attorneys should serve the country. Their replacements are entering a department with leadership that expressly prioritizes adherence to the Trump administration’s political agenda. To be sure, many career DOJ attorneys are still at the department and remain committed to its core institutional values, even at the cost of being fired by the administration. But those attorneys are increasingly under strain.

A department with broken internal accountability systems cannot be expected to police itself against personal and partisan misuse of its authorities. In the near term, the existing system of external checks and balances, including federal courts, state bar associations, and Congress, must revitalize their roles to fill this gap.

Federal courts have already begun to take note of the DOJ’s factual misrepresentations, unsupported legal arguments, and dissembling on behalf of recalcitrant federal agencies. Courts and jurors are increasingly questioning whether to issue indictments, warrants, and subpoenas, prosecutorial tools that they previously routinely issued in deference to the department. Unsurprisingly, several courts have concluded that a DOJ that cannot be presumed to be acting in good faith should not be given the benefit of the doubt when the facts and arguments don’t add up.

District courts, which review and authorize investigatory tools and create factual records, already have the means to address legally and ethically questionable conduct. When the record is insufficient or suspect, judges can, for example, reject requests for warrants that lack appropriate and reliable evidence. They can allow parties to get information about the government’s decision-making.¹ They can also demand sworn statements from people with direct knowledge of the government’s actions rather than accepting representations by attorneys. Judges may find these tools necessary only in a relatively small number of cases, but allowing abuses to multiply will undermine the integrity of the entire judicial process. As discussed above, a growing number of district courts have already signaled that government attorneys in this administration will not be afforded presumptions of regularity and good faith. Circuit courts will soon have to grapple with these issues on appeal.

State bar associations must also adjust to this new reality. Historically, and even during this administration, state bar associations have been quick to refer allegations of DOJ attorney misconduct to the department’s Office of Professional Responsibility because investigations of government attorneys can be time and labor intensive and can raise complicated issues of privilege and other defenses. But this administration’s attacks against the DOJ’s internal controls have made clear it does not intend to allow for such accountability.

Finally, Congress, with its oversight authorities, can serve as an important check on DOJ overreach and abuses of power. Over the years, congressional committees have undertaken wide-ranging investigations, often concurrent with inspector general reviews, of DOJ misconduct.

In the past, criticism from judges, public exposure of misconduct, and repeated losses in court could be expected to prompt a serious internal review at the DOJ. But as this administration has systematically dismantled the DOJ’s internal accountability systems, its lawyers are pushing the boundaries of its professional and ethical obligations. Until the department’s internal checks can be rebuilt, courts, state bar associations, Congress, and others have a critical role to play in curbing partisan abuses of the DOJ’s power.

Christine Berger is the Patricia Bauman Senior Fellow at the Brennan Center, where she focuses on civil rights, professional responsibility and ethics, democracy, and rule of law issues. Previously, Berger served in various roles in the Department of Justice, including principal deputy assistant attorney general of the Civil Rights Division, deputy chief of staff and senior counselor to the attorney general, and civil rights appellate attorney. At the State Department, Berger served as an attorney-adviser in the Office of the Legal Adviser. Berger was also chief counsel to Sen. Mazie Hirono when she was ranking member of the Senate Judiciary Committee’s Subcommittee on the Constitution. Berger received her BA and MA from Stanford University and her JD from Yale Law School, where she served as managing editor of The Yale Law Journal. She clerked for Judge Raymond J. Lohier Jr. of the U.S. Court of Appeals for the Second Circuit.

Joe Gaeta is a consultant with the Brennan Center, where he works on issues related to the Department of Justice and the rule of law. During the Biden administration, he served as deputy assistant attorney general in the DOJ Office of Legislative Affairs. He was also a trial attorney in the department’s Civil Rights Division. Between his roles at the DOJ, Joe spent twelve years in the U.S. Senate as chief counsel, oversight director and legislative director for Sen. Sheldon Whitehouse, and chief counsel for the Senate Budget Committee under Chairman Kent Conrad. He is a graduate of the University of Pennsylvania and Stanford Law School and clerked for the Honorable Myron H. Thompson of the Middle District of Alabama.