The first months of the second Trump administration have brought dozens of executive orders that appear to contravene long-settled law, politicized pardons, politically motivated investigations and prosecutions, and threats to defy court orders, generating profound concerns for the rule of law in the United States. footnote1_pMHSZCFzLQn3U4aKWcIpWmRKAEObVHjqWVWmsKbmk_nRrm3jmFBo1x1 The White House has so far issued more than 181 executive orders, many of which appear to contravene long-settled law. High-level appointees at the Department of Justice (DOJ) have issued public threats against politicians and have been accused of making politically motivated decisions to initiate or drop investigations and prosecutions — leading to the public resignations of dozens of career prosecutors. Devlin Barrett, “Justice Dept. Opens Inquiry into Andrew Cuomo, Singling Out Another Political Target,” New York Times, May 20, 2025, https://www.nytimes.com/2025/05/20/us/politics/andrew-cuomo-investigation-doj.html; and Shayna Jacobs et al., “Justice Dept. Investigating N.Y. Attorney General Who Has Targeted Trump,” Washington Post, May 8, 2025, https://www.washingtonpost.com/national-security/2025/05/08/letitia-james-mortgage-investigation-trump-justice-fbi/. The administration has also launched retributive attacks against law firms, universities, and media companies based on dubious legal theories. Ankush Khardori, “The Fallout Is Growing on Trump’s Deals With Law Firms,” Politico, July 10, 2025, https://www.politico.com/news/magazine/2025/07/10/trump-law-firms-deals-mess-column-00445259; Collin Binkley, “More Than 50 Universities Face Federal Investigations as Part of Trump’s Anti-DEI Campaign,” AP News, March 15, 2025, https://apnews.com/article/trump-dei-universities-investigated-f89dc9ec2a98897577ed0a6c446fae7b; and Jess Bidgood, “Trump Sharpens Attacks on a Favorite Foe: The News Media,” New York Times, July 21, 2025, https://www.nytimes.com/2025/07/21/us/politics/trump-news-media.html. Many of these actions have been enjoined by federal courts. In at least 57 cases since Trump retook office, plaintiffs have accused the administration of not complying with their directives, and judges have often agreed, although these questions are still being litigated. Justin Jouvenal, “Trump Officials Accused of Defying 1 in 3 Judges Who Ruled Against Him,” Washington Post, last updated July 21, 2025, https://www.washingtonpost.com/politics/2025/07/21/trump-court-orders-defy-noncompliance-marshals-judges/. Practicing lawyers have played a central role in virtually all these controversies, leading many commentators to argue that they are failing to uphold the rules and standards governing the legal profession. footnote2_1qyfYAjsvuVSF6hvj06bPUawQXH4X5TATxbR6DzIkg_nCXQqU7X5cPT2 Some of these allegations have already resulted in disciplinary complaints. For instance, in July 2025 a legal watchdog group filed bar disciplinary complaints against three rank-and-file lawyers who have represented the Trump administration in court. Alan Feuer, “Legal Watchdog Files Bar Complaints Against Justice Dept. Lawyers,” New York Times, July 31, 2025, https://www.nytimes.com/2025/07/31/us/politics/justice-department-lawyers-complaint.html. In many cases, lawyers are also among the most prominent opponents pushing back against the administration, including through litigation. The president, attorney general, and other prominent administration figures have suggested that it is not themselves but their opponents who are violating ethical rules. footnote3_QBhkVVqffwVduYyWoqI48i8xhL2IuUXlCzT90vcDwY_jG2YaN88toKe3 Memorandum on Preventing Abuses of the Legal System and the Federal Court, DCPD-202500387, March 21, 2025, https://www.govinfo.gov/content/pkg/DCPD-202500387/pdf/DCPD-202500387.pdf; and Kyle Cheney and Josh Gerstein, “Trump Admin Escalates its War With the Courts — This Time Targeting Judge Boasberg,” Politico, July 28, 2025, https://www.politico.com/news/2025/07/28/james-boasberg-justice-department-complaint-00480938.
In this climate, it is essential not only for government lawyers but also for the broader legal profession and the general public to understand the rules, standards, and commitments governing the practice of law in the United States so that they can accurately judge both the administration’s actions and those of its opponents and hold all attorneys involved accountable when they fail to meet their ethical obligations.
Government lawyers have special responsibilities. The federal executive branch has immense power to shape the lives of individual Americans and the collective public through investigations, criminal prosecutions, civil litigation, and administrative actions. These powers have always been susceptible to abuse, spurring the creation of a range of internal checks within the executive branch to prevent the weaponization of government power, as well as informal norms against conduct by career prosecutors and others that could create even an appearance of — let alone actual — bias. footnote4_zIaptIb7ucNFZhKcBBS9YioVpagX4jM6iKqyneQQ_xNbeAsClWNb54 Preet Bharara et al., Proposals for Reform: National Task Force on Rule of Law & Democracy, Brennan Center for Justice, October 2, 2018, https://www.brennancenter.org/our-work/policy-solutions/proposals-reform-national-task-force-rule-law-democracy. But recent years have seen the erosion of these safeguards, which has accelerated in the first months of the second Trump administration with the firings of agency inspector generals and sidelining of other internal executive branch watchdogs. footnote5_8LGMCr8cMScPjXNEVX1MISITF82TiW-LCtiKx8MgBjM_y3hR8q6G86w25 Even before the current administration took office, political appointees had meddled in specific law enforcement cases with growing frequency. Bharara et al., Proposals for Reform, 18. Promises to pursue civil or criminal charges against political opponents have become normalized in political debates. See Nick Gass, “‘Lock Her Up’ Chants Rules Republican Convention,” Politico, July 19, 2016, https://www.politico.com/story/2016/07/rnc-2016-lock-her-up-chant-hillary-clinton-225916; Darren Samuelsohn, “Dems Taunt Trump with Threats of Prison Time,” Politico, June 18, 2019, https://www.politico.com/story/2019/06/18/democrats-trump-prosecute-2020–1366755; and Robert Downen and William Melhado, “Trump Vows Retribution at Waco Rally: ‘I Am Your Warrior, I Am Your Justice,’” Texas Tribune, March 25, 2023, https://www.texastribune.org/2023/03/25/donald-trump-waco-rally-retribution-justice/. Threats of criminal prosecution have also become a concerning feature of policy debates in some areas. See Eric Petry and Daniel I. Weiner, “Project 2025 Would Fuel the Assault on Election Officials,” Brennan Center for Justice, August 16, 2024, https://www.brennancenter.org/our-work/research-reports/project-2025-would-fuel-assault-election-officials. Meanwhile, charges of weaponization have become a rhetorical shield even when there is enough evidence of wrongdoing to warrant the government’s pursuit of civil or criminal liability. See, e.g., Siladitya Ray, “Trump Allies Accuse Biden of ‘Weaponizing’ DOJ After His Indictment in Classified Documents Case,” Forbes, June 9, 2023, https://www.forbes.com/sites/siladityaray/2023/06/09/trump-allies-accuse-biden-of-weaponizing-doj-after-his-indictment-in-classified-documents-case/l. The first line of defense against misconduct by federal government lawyers has traditionally consisted of internal executive branch bodies, but it is doubtful that they will be able to effectively deter abuse in the current environment.
This does not mean that guardrails are entirely absent, however. The law is a self-governing profession. All practicing lawyers, including government lawyers, are bound by a variety of rules and standards enforced by state and federal courts, bar authorities, and the broader profession. The erosion of both formal checks and informal constraints on abuse of power in the executive branch has cast a spotlight on the question of what conduct these rules and standards do and do not proscribe.
To help answer this question, we have consulted with dozens of legal ethics experts and practitioners, and our conclusions reflect their input.
Broadly speaking, the most relevant constraints found in constitutional and statutory law, court rules, codes of professional conduct, and long-standing policy guidance from DOJ and other agencies can be distilled into at least six broad principles:
- Dishonesty is prohibited. Criminal and civil law and rules of professional responsibility and court procedure strictly prohibit dishonesty to courts, clients, other participants in legal proceedings, and in some cases even the general public. 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.
- Defiance of court orders is prohibited. Overtly disobeying or encouraging a client to disobey a court order violates multiple disciplinary rules and could subject an attorney to legal sanctions or a finding of criminal contempt.
- Criminal investigations, prosecutions, and lawsuits must have some good-faith, credible basis in law and fact. Bringing criminal proceedings without probable cause or pursuing frivolous civil actions that lack a cognizable basis in either fact or law violates numerous rules. Particularly in civil cases, however, the bar for formal sanctions is high. The fact that a civil claim, particularly one brought by a private party, is novel in some respect generally does not establish a sanctionable violation.
- Law enforcement cannot be used to harass, intimidate, or exact political retribution or as leverage to achieve unrelated political goals. Pursuing even nonfrivolous investigations or prosecutions primarily to harass or intimidate targets or as a form of political leverage violates numerous agency policies and other long-accepted ethical standards for government lawyers. It also potentially violates specific disciplinary rules in certain jurisdictions.
- Conflicts of interest and similar misuses of office are generally prohibited. All lawyers must adhere to attorney conflict rules. These rules include restrictions on concurrent representation of a client who is directly adverse to another client, “switching sides” between two clients in a particular matter or a set of related matters, and representing a client whose interests are materially adverse to a former client in the same or a substantially related matter (proscribing government lawyers from participating in official matters that they previously worked on outside of government). These rules can generally be waived if both the former and current clients explicitly agree (for waiver purposes, a government attorney’s “client” is usually the agency that employs the attorney). Government lawyers are also subject to various ethical rules for federal employees, including gift restrictions, criminal prohibition on participating in a specific matter in which they have a financial interest, and other constraints. Most of these restrictions cannot be waived.
- Lawyers are responsible for their own conduct and that of supervisees. Every practicing lawyer is required to obey rules of professional conduct and other ethical standards. Line prosecutors and other subordinate government lawyers generally cannot evade responsibility for ethical violations on the grounds that they were following a supervisor’s directives. Moreover, supervisors can be held responsible for directing unethical conduct by the lawyers whose work they oversee.
Importantly, violations of the rules described above can carry serious formal consequences, including monetary sanctions, temporary or permanent loss of the right to practice law, and public rebukes from courts and bar authorities that go on a lawyer’s permanent record. Some conduct that violates legal ethics rules may also be illegal and give rise to criminal or civil charges. But compliance with the core ethical standards and commitments matters regardless of whether the lawyers involved face any type of formal sanction. These standards are an important metric by which members of the legal profession can judge government lawyers’ conduct and by which all Americans can judge the administration’s actions. At stake is the future of the profession and the long-term health of American democracy.
End Notes
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footnote1_pMHSZCFzLQn3U4aKWcIpWmRKAEObVHjqWVWmsKbmk_nRrm3jmFBo1x
1
The White House has so far issued more than 181 executive orders, many of which appear to contravene long-settled law. High-level appointees at the Department of Justice (DOJ) have issued public threats against politicians and have been accused of making politically motivated decisions to initiate or drop investigations and prosecutions — leading to the public resignations of dozens of career prosecutors. Devlin Barrett, “Justice Dept. Opens Inquiry into Andrew Cuomo, Singling Out Another Political Target,” New York Times, May 20, 2025, https://www.nytimes.com/2025/05/20/us/politics/andrew-cuomo-investigation-doj.html; and Shayna Jacobs et al., “Justice Dept. Investigating N.Y. Attorney General Who Has Targeted Trump,” Washington Post, May 8, 2025, https://www.washingtonpost.com/national-security/2025/05/08/letitia-james-mortgage-investigation-trump-justice-fbi/. The administration has also launched retributive attacks against law firms, universities, and media companies based on dubious legal theories. Ankush Khardori, “The Fallout Is Growing on Trump’s Deals With Law Firms,” Politico, July 10, 2025, https://www.politico.com/news/magazine/2025/07/10/trump-law-firms-deals-mess-column-00445259; Collin Binkley, “More Than 50 Universities Face Federal Investigations as Part of Trump’s Anti-DEI Campaign,” AP News, March 15, 2025, https://apnews.com/article/trump-dei-universities-investigated-f89dc9ec2a98897577ed0a6c446fae7b; and Jess Bidgood, “Trump Sharpens Attacks on a Favorite Foe: The News Media,” New York Times, July 21, 2025, https://www.nytimes.com/2025/07/21/us/politics/trump-news-media.html. Many of these actions have been enjoined by federal courts. In at least 57 cases since Trump retook office, plaintiffs have accused the administration of not complying with their directives, and judges have often agreed, although these questions are still being litigated. Justin Jouvenal, “Trump Officials Accused of Defying 1 in 3 Judges Who Ruled Against Him,” Washington Post, last updated July 21, 2025, https://www.washingtonpost.com/politics/2025/07/21/trump-court-orders-defy-noncompliance-marshals-judges/.
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footnote2_1qyfYAjsvuVSF6hvj06bPUawQXH4X5TATxbR6DzIkg_nCXQqU7X5cPT
2
Some of these allegations have already resulted in disciplinary complaints. For instance, in July 2025 a legal watchdog group filed bar disciplinary complaints against three rank-and-file lawyers who have represented the Trump administration in court. Alan Feuer, “Legal Watchdog Files Bar Complaints Against Justice Dept. Lawyers,” New York Times, July 31, 2025, https://www.nytimes.com/2025/07/31/us/politics/justice-department-lawyers-complaint.html.
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footnote3_QBhkVVqffwVduYyWoqI48i8xhL2IuUXlCzT90vcDwY_jG2YaN88toKe
3
Memorandum on Preventing Abuses of the Legal System and the Federal Court, DCPD-202500387, March 21, 2025, https://www.govinfo.gov/content/pkg/DCPD-202500387/pdf/DCPD-202500387.pdf; and Kyle Cheney and Josh Gerstein, “Trump Admin Escalates its War With the Courts — This Time Targeting Judge Boasberg,” Politico, July 28, 2025, https://www.politico.com/news/2025/07/28/james-boasberg-justice-department-complaint-00480938.
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footnote4_zIaptIb7ucNFZhKcBBS9YioVpagX4jM6iKqyneQQ_xNbeAsClWNb5
4
Preet Bharara et al., Proposals for Reform: National Task Force on Rule of Law & Democracy, Brennan Center for Justice, October 2, 2018, https://www.brennancenter.org/our-work/policy-solutions/proposals-reform-national-task-force-rule-law-democracy.
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footnote5_8LGMCr8cMScPjXNEVX1MISITF82TiW-LCtiKx8MgBjM_y3hR8q6G86w2
5
Even before the current administration took office, political appointees had meddled in specific law enforcement cases with growing frequency. Bharara et al., Proposals for Reform, 18. Promises to pursue civil or criminal charges against political opponents have become normalized in political debates. See Nick Gass, “‘Lock Her Up’ Chants Rules Republican Convention,” Politico, July 19, 2016, https://www.politico.com/story/2016/07/rnc-2016-lock-her-up-chant-hillary-clinton-225916; Darren Samuelsohn, “Dems Taunt Trump with Threats of Prison Time,” Politico, June 18, 2019, https://www.politico.com/story/2019/06/18/democrats-trump-prosecute-2020–1366755; and Robert Downen and William Melhado, “Trump Vows Retribution at Waco Rally: ‘I Am Your Warrior, I Am Your Justice,’” Texas Tribune, March 25, 2023, https://www.texastribune.org/2023/03/25/donald-trump-waco-rally-retribution-justice/. Threats of criminal prosecution have also become a concerning feature of policy debates in some areas. See Eric Petry and Daniel I. Weiner, “Project 2025 Would Fuel the Assault on Election Officials,” Brennan Center for Justice, August 16, 2024, https://www.brennancenter.org/our-work/research-reports/project-2025-would-fuel-assault-election-officials. Meanwhile, charges of weaponization have become a rhetorical shield even when there is enough evidence of wrongdoing to warrant the government’s pursuit of civil or criminal liability. See, e.g., Siladitya Ray, “Trump Allies Accuse Biden of ‘Weaponizing’ DOJ After His Indictment in Classified Documents Case,” Forbes, June 9, 2023, https://www.forbes.com/sites/siladityaray/2023/06/09/trump-allies-accuse-biden-of-weaponizing-doj-after-his-indictment-in-classified-documents-case/l. The first line of defense against misconduct by federal government lawyers has traditionally consisted of internal executive branch bodies, but it is doubtful that they will be able to effectively deter abuse in the current environment.