Key Standards and Commitments
The rules and standards governing the legal profession constrain in important ways the ability of lawyers in the federal government to use its vast power to improperly target political enemies, to reward friends, or to restrict the administration’s opponents in the legal tactics they use against it. Six major sources of misconduct give rise to key restraints on government lawyers.
Dishonesty
One of the issues raised frequently by critics of the current administration — and the administration itself — is dishonesty. Being untruthful in legal proceedings or in public discussions of legal matters is a common basis for attorney discipline in the United States. Many of the unethical legal actions feared by the administration’s critics, such as aggressive prosecution of political opponents, would likely necessitate making misrepresentations to judges, opposing counsel, criminal and civil enforcement targets, and the broader public. The administration itself has also leveled charges of dishonesty against members of the private bar.
Dishonest conduct has been a central part of many legal scandals over the past 50 years. President Richard Nixon’s attorney general, John Mitchell, was disbarred and sent to prison for his role in the Watergate cover-up. President Bill Clinton agreed to surrender his law license for misrepresentations he made to Whitewater investigators. And multiple senior officials in the George W. Bush administration had their government careers cut short for misrepresentations to Congress and other administration officials in the scandal that arose over the firings of nine U.S. attorneys in 2006.
Dishonesty falls squarely under multiple disciplinary rules that have been adopted across jurisdictions. For instance, ABA Model Rule 3.3(a) prohibits 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. Similarly, ABA Model Rule 8.4(c) prohibits lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” And Model Rule 8.2(a) prohibits lawyers from making false statements concerning the qualifications or integrity of a judge or public legal officer. Many states and Washington, DC, have adopted similar rules. The ABA Model Rules and most states also generally prohibit lawyers from engaging in “conduct that is prejudicial to the administration of justice,” which can often be the practical result of a lawyer’s dishonesty in connection with any legal proceeding.
The Federal Rules of Civil and Criminal Procedure reinforce lawyers’ duty of honesty. Rule 11, for instance, imposes a duty of candor that “means more than just not lying,” but also “steering clear of ‘half-truths, inconsistencies, mischaracterizations, exaggerations, omissions, evasions, and failures to correct known misimpressions created by [the lawyers’] own conduct.’”
In criminal proceedings, prosecutors generally have a heightened duty of candor. They must repeatedly certify that they have probable cause, and they also have significant duties of transparency, including giving defendants access to evidence they plan to use at trial. Prosecutors also have constitutional obligations to disclose exculpatory evidence that may prove a defendant’s innocence or discredit the witnesses against the defendant.
One of the biggest legal scandals involving a federal prosecution in recent decades was brought to light when career prosecutors were found to have “intentionally withheld” favorable evidence from lawyers for former Alaska Republican Sen. Ted Stevens, who was convicted of corruption in 2008. Stevens’s conviction was overturned, and in early 2009 DOJ decided not to seek a new trial. After a subsequent investigation, some of the lawyers involved were held in contempt of court and later suspended.
Importantly, many of the rules and standards requiring lawyers to behave honestly apply outside formal legal proceedings. While exaggerations, half-truths, and even outright lies have become common in political discourse, lawyers have heightened obligations even when they are not in a courtroom or otherwise directly involved in a legal proceeding. Disciplinary authorities in Washington, DC, for instance, have found lawyers in violation of professional rules for knowingly drafting an inaccurate DOJ response to a media inquiry and for proposing to colleagues that DOJ make inaccurate representations to a state legislature.
Some of the most egregious recent cases of dishonesty arose from efforts to overturn the result of the 2020 presidential election. In 2024, for instance, a hearing committee of the Washington, DC, bar found that former Acting Assistant Attorney General Jeffrey Clark violated professional conduct rules by sending Georgia officials a letter containing “significant false and misleading statements” about the integrity of the 2020 election in that state, which he falsely claimed DOJ was investigating. In July 2025, the District of Columbia Board on Professional Responsibility recommended Clark’s disbarment.
Several other lawyers also faced sanctions in connection with the aftermath of the 2020 election. Trump’s personal lawyer Rudy Giuliani was disbarred in New York State and later in Washington, DC, for making false statements, including defamatory claims about election workers. Jenna Ellis, a campaign attorney for the president, was suspended from practicing law in Colorado for three years for making false statements about the election result in Georgia. The State Bar Court of California recently affirmed a state judge’s recommended disbarment of John Eastman, another attorney for Trump, for misrepresenting various legal and factual issues related to certification of the presidential election. And Michael Gabelman, a former Wisconsin Supreme Court justice, recently agreed to a three-year suspension of his law license in connection with false statements and omissions he made during his investigation of the 2020 election result in Wisconsin.
Some of these individuals faced not only professional consequences but criminal and civil liability as well. For instance, Giuliani was ordered to pay $148 million in damages for defaming two Georgia poll workers. Ellis pled guilty to aiding and abetting false statements in writing. And Kenneth Chesebro (a lawyer who allegedly helped organize an effort to submit false slates of electors from key states) pled guilty to conspiracy to commit filing false documents, after an investigation in Fulton County, Georgia, into election interference.
It is important to note that not every untruth told by a lawyer will constitute an ethical or legal violation. Inadvertent mistakes typically do not breach any ethical rule; in many jurisdictions this extends even to mistakes that result from negligence. Misstatements that are immaterial to a legal matter also generally are not covered. But if an attorney intentionally or recklessly attempts to deceive a court, an opposing party, or even the general public in connection with a legal matter, this will often constitute a serious ethical violation.
Defying Court Orders
Direct defiance of court orders is another clear-cut basis for sanctions or other disciplinary action — one that has become increasingly relevant in litigation over the administration’s use of novel legal arguments to deport immigrants residing in the United States.
Defiance of court orders is expressly prohibited by numerous ethical rules. ABA Model Rule 3.4(c), adopted in most jurisdictions, states that a lawyer “shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” Federal courts have clarified that, under this rule, a lawyer acting on behalf of himself or a client may disregard a court order only if it is invalid on its face. The U.S. Supreme Court has held that counseling a client to disobey a court order is itself a violation of Rule 3.4(c). Numerous other ethical rules also potentially apply.
Rule 6.2 of the ABA Standards for Imposing Lawyer Sanctions, regarding abuse of the legal process, directly addresses the punishment for an attorney’s failure to obey an obligation under the rules of a tribunal. Rule 6.21 in particular provides that disbarment is appropriate when a lawyer knowingly violates a court order or rule with the intent to benefit himself or another and causes serious or potentially serious injury to a party or legal proceeding.
Outside of professional conduct rules, judges have relatively broad power to sanction noncompliance with their orders through civil or criminal contempt holdings. A person may be held in contempt of court, and thereby fined, imprisoned, or both, for failure to comply with a court order. In a notable instance under the Clinton administration, the U.S. Court of Appeals for the District of Columbia Circuit held the secretaries of the treasury and interior, Robert Rubin and Bruce Babbitt, in contempt of court for refusing to produce documents related to the federal government’s mismanagement of nearly $4 billion in Native American trusts. The court directed the Department of the Interior to set up an accounting project to locate and manage the lost funds, which it did; the court also noted that it had the power to impose criminal sanctions but ultimately declined to do so. Noncompliance with court orders has, however, resulted in criminal and civil liability for various lower-ranking government officials over the years.
Legally or Factually Baseless Prosecutions and Lawsuits
Another core concern arising from statements and actions by key administration officials is the potential for baseless criminal prosecutions and other enforcement actions. Meanwhile, the administration itself has charged that many of the lawsuits opponents have filed against its early executive actions are themselves “baseless” and “partisan”; it has pledged to aggressively seek sanctions and refer attorneys in the private bar to disciplinary authorities. Were either government or private attorneys to bring truly frivolous legal proceedings, they would run afoul of a number of rules of procedure and attorney ethics rules.
The core rule governing frivolous and vexatious civil litigation in federal court is Rule 11 of the FRCP. Rule 11 requires all lawyers bringing federal civil cases, including those representing the government, to certify that all claims and other legal contentions they have presented are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” As the Supreme Court has explained, “Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, legally tenable, and ‘not interposed for any improper purpose.’ ”
Rule 11’s “central goal” is “deterrence,” with serious violations incurring significant sanctions. But the bar for sanctions under Rule 11 is relatively high. The fact that a claim or argument is novel or even relatively unlikely to succeed generally is not sufficient for it to be sanctionable. And bringing novel or long-shot claims generally does not give rise to a legal or ethical violation as long as those claims have some cognizable basis in law and fact.
State ethics codes reinforce the principle that all claims and arguments brought in court must be grounded in law. As ABA Model Rule 3.1 puts it, they must have “a basis in law and fact . . . that is not frivolous.” For novel cases, lawyers must be able to make “a good faith argument for an extension, modification or reversal of existing law.” Most states and Washington, DC, have adopted some version of Rule 3.1.
Criminal prosecutions, like civil actions, must have a basis in both law and fact, and the bar is significantly higher than in civil cases. Specifically, the Federal Rules of Criminal Procedure establish processes to ensure that prosecutors have established the constitutionally required “probable cause” that a crime was committed before taking significant actions in a case, such as seeking an arrest warrant from a judge, having assets frozen, or filing an indictment. Probable cause typically requires a reasonable belief, supported by facts and circumstances, that a crime has been committed or that specific property is connected to a crime.
Legal ethics rules support the probable cause requirement. ABA Model Rule 3.8(a) requires government lawyers to refrain from prosecuting a charge that they know is not supported by probable cause. Comments to the Model Rules explain the centrality of this evidentiary standard to a prosecutor’s ethical duties: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.”
Some states have adopted an even higher evidentiary standard. Ethics rules in Washington, DC, state that a “prosecutor in a criminal case shall not . . . prosecute to trial a charge that the prosecutor knows is not supported by evidence sufficient to establish a prima facie showing of guilt” — that is, evidence that would warrant a conviction unless contradicted or explained by the defendant.
DOJ prosecutors are also bound by numerous agency policies that reinforce “the longstanding threshold requirement . . . that a prosecutor may commence or recommend federal prosecution only if he/she believes that the person will more likely than not be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal.”
At least until recently, truly baseless prosecutions have been exceedingly rare. If anything, in high-profile cases DOJ lawyers have repeatedly recommended against prosecution — even where the evidence meets the threshold sufficiency requirement — when it has not served a substantial federal interest or for other prudential reasons.
Other Abusive Criminal, Civil, and Administrative Actions
Aside from truly baseless or frivolous legal actions, prosecutors and other enforcement lawyers necessarily have broad discretion to investigate potential lawbreaking. But even that discretion has certain limits. As Attorney General Robert Jackson warned in 1940: “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” Jackson was specifically addressing the role of prosecutors, but his warning could apply to any lawyer responsible for enforcing federal law. Preventing the abuse Jackson warned against is the core objective of many rules proscribing the use of prosecutorial or other government power to harass or take retribution against political opponents, or as a bargaining chip to secure some concession unrelated to the matter being investigated. Even in cases in which government lawyers can identify a basis for some legal violation, selecting targets in order to harass, intimidate, or punish political opponents or to accomplish unrelated political goals is not permissible.
It is well established that criminal investigations intended to harass and intimidate or exact political retribution violate a defendant’s constitutional rights. Attorneys who participate in such proceedings or analogous civil matters can also violate ethics rules. For example, ABA Model 4.4(a) states that “in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” The Arizona Supreme Court found that a county prosecutor violated the state’s analogue of this rule for initiating criminal charges against an elected official for the substantial purpose of “burden[ing] and embarrass[ing] a political foe” and exacting “politically-motivated revenge.”
Similarly, ABA Model Rule 8.4(d) provides that it is “professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” The Indiana Supreme Court found that a county prosecutor violated the state’s analogue of this rule when he threatened to renew a dormant criminal investigation against a political candidate unless the candidate dropped his campaign for office. The court noted that “the key element of culpability in the respondents’ actions was their use of the prosecutorial powers to further their self-interests.”
Some state rules of professional conduct include additional guardrails against harassment. For example, Washington, DC, prohibits “improperly favor[ing] or invidiously discriminat[ing] against any person” in exercising discretion to investigate or to prosecute, as well as “seek[ing] or threaten[ing] to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter.” New York states that a lawyer shall not bring a legal proceeding that “has no reasonable purpose other than to delay or prolong the resolution of litigation . . . or serves merely to harass or maliciously injure another.” In both jurisdictions, prosecutors and government lawyers have periodically been disciplined for abusive practices.
DOJ’s internal policies and long-standing norms have also long contained safeguards to prevent use of federal law enforcement for political retribution and other abuses. (Many of these were crafted in response to abuses that took place in the mid-20th century, like FBI Director J. Edgar Hoover’s use of the agency to harass civil rights and labor leaders and compile dossiers on prominent politicians.) DOJ’s policies have focused on preventing not only actual political bias, but also its appearance. Consistent treatment of defendants across different cases is critical in this regard. Special Counsel Robert Hur’s report on President Biden’s handling of classified documents, for instance, noted the “Department’s prior treatment of former presidents and vice presidents who kept national security materials” as one factor that counseled against prosecution of Biden. Another long-standing safeguard, although one that may be substantially eroding, is the expectation that political appointees will limit their direct involvement in investigatory and charging decisions, leaving those to career attorneys.
While individuals who face legal action frequently claim that they are being selectively targeted for political purposes, the bar for conduct that crosses the line is generally high. Courts do not typically inquire as to a government lawyer’s motives in a legal proceeding. But in circumstances that raise the possibility that retribution or purely political motives served as the primary motivation for prosecution or enforcement, government lawyers can lose the presumption of regularity.
Conflicts of Interest and Other Misuses of Office
Conflicts of interest and related abuses of public office are another core concern, given that many high-level lawyers in the second Trump administration are taking on roles in which they could influence proceedings they previously handled in private practice (including on behalf of the president himself) or in which they could have financial conflicts or political biases.
Federal law forbids all executive branch officials other than the president and vice president from participating in particular governmental matters in which they have a personal financial interest; violations can result in criminal prosecution. Related regulations also restrict government employees from using public office to benefit themselves and their family and friends and from otherwise acting in ways that could raise reasonable questions about their impartiality. Waivers are available in some of these instances, but they must be in writing and, in the case of financial conflicts, may be granted only if the conflict is not “substantial.”
The Hatch Act also restricts partisan political activities by federal officials. While these restrictions vary depending on a person’s role — and are generally less restrictive for political appointees — they bar all federal officials other than the president and vice president from engaging in partisan political activity while on duty, using official resources for partisan political purposes, and using their position to interfere with an election.
Attorney ethics rules impose further restrictions. Government lawyers generally may not participate in official matters that they previously worked on outside of government, including “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter” involving a specific party or parties. This rule is an extension of the more general prohibition that exists in all U.S. jurisdictions on lawyers working on legal matters where they previously took an opposing position. These restrictions can be waived, but only if the lawyer’s prior client and the government agency where they currently work do so in writing.
Finally, long-standing agency guidelines often go beyond the requirements of federal ethics law and state bar rules. DOJ lawyers, for instance, are required to avoid situations in which their official actions affect or appear to affect private interests, financial or nonfinancial. Another DOJ rule prohibits employees from engaging in an investigation if they have “a personal or political relationship” with anyone involved in the investigation or any person or organization that they know has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution. A “close identification with an elected official, a candidate . . . a political party, or a campaign” are types of political relationships that would require recusal.
In keeping with these guidelines, high-level officials in every past administration, including the first Trump administration, recused themselves to avoid the appearance of bias in criminal or civil matters before DOJ. For instance, Attorney General Jeff Sessions recused himself from supervising Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 election, which included an investigation of the 2016 Trump campaign, because he had previously served as chairman of the campaign’s national security committee. President George W. Bush’s attorney general, John Ashcroft, recused himself from an investigation into the leak of former undercover CIA officer Valery Plame’s identity, citing his close personal ties to administration officials who would be questioned during the investigation. And President Obama’s attorney general, Eric Holder, recused himself from several investigations into private actors that he had previously represented, including Swiss bank UBS and former baseball player Roger Clemens. Altogether, previous attorneys general have recused themselves more than a dozen times since 1990 because of real or perceived conflicts of interest.
Serious consequences can result when a lawyer fails to abide by these safeguards. In 2023, for example, Rachael Rollins, President Biden’s appointee to serve as U.S. attorney in Massachusetts, resigned in the face of multiple investigations that subsequently found she had violated numerous ethical rules and the Hatch Act in her attempts to interfere in a local district attorney race. Other DOJ attorneys have been investigated and sometimes disciplined by DOJ or ethics authorities for participating in investigations of former clients and other associates and only “informally recusing,” unwittingly failing to disclose their prior representation of an investigatory target (the attorney had not realized that the target was a former law firm client), working on a matter involving a client the attorney had previously represented in private practice, inappropriate political bias in hiring career employees, and lack of candor during interviews with the Office of the Inspector General.
Individual and Supervisory Responsibility
Finally, government lawyers may face ethical questions when they are directed to take certain actions by a supervisor. Attorney General Pam Bondi and other key administration officials have made clear that they will not tolerate dissent from any DOJ attorney “who because of their personal political views or judgments declines to sign a brief or appear in court, refuses to advance good-faith arguments on behalf of the administration, or otherwise delays or impedes the Department’s mission.” As noted, a number of career DOJ lawyers have already resigned when faced with directives that they felt violated their professional obligations.
These resignations are understandable, given that all practicing lawyers have an independent obligation to comply with ethical rules and standards regardless of the instructions they receive from superiors. ABA Model Rule 5.2(a), adopted in virtually all U.S. jurisdictions, provides that lawyers cannot excuse or ignore their ethical obligations simply by claiming they were following orders (colloquially known as the “Nuremberg defense”). This principle applies to government lawyers just as much as it does to those in private practice.
In one Oklahoma case, for example, an assistant district attorney was suspended for abuse of the subpoena process, failure to disclose evidence, and other prosecutorial misconduct. The district attorney, his supervisor, was found to have routinely sanctioned some of this misconduct, but that did not prevent the attorney himself from being suspended for 180 days, a potentially career-ending sanction.
While subordinates cannot excuse unethical conduct on the grounds that they were obeying a supervisor, lawyers acting in a supervisory capacity can be held responsible for the actions of their subordinates. ABA Model Rule 5.1(c), for example, provides that an attorney can be held responsible for other lawyers’ violations if that attorney ordered the violation, knew of the violation and ratified it, knew of the violation and failed to take action, or made a professional judgment that protected the subordinate. Washington, DC, professional conduct rules explicitly state that Rule 5.1 applies to “government lawyers.” Similarly, Model Rule 8.4(a) states that “it is professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” Most states and Washington, DC, have incorporated these principles into their respective codes.
In short, all government lawyers are responsible for their own actions and for upholding the standards of the legal profession, whether giving or following orders. Government lawyers cannot excuse their conduct by shifting the blame onto a superior or someone who reports to them.
