The department’s proposed rule restricting state bar ethics investigations of DOJ attorneys is its latest effort to dismantle checks on its abuses of power.
Last month, the Trump administration revealed its latest effort to break down methods of accountability intended to curb the Department of Justice’s abuses of power. The department proposed a rule that purports to give the attorney general authority to prevent state bar disciplinary authorities from investigating current or former DOJ attorneys for as long as the DOJ chooses to review those allegations. It is an attempt to shield DOJ attorneys suspected of violating ethics rules from oversight by state bar disciplinary bodies.
Several state bar associations, including in Illinois and New York, recognizing their important role in investigating attorney misconduct — including by DOJ attorneys — have publicly opposed the DOJ’s proposed rule. The Brennan Center also filed a comment opposing the rule. Should the Justice Department be able to shield its misconduct from any meaningful oversight, it will allow the administration to abuse the DOJ’s immense power with impunity and further erode public trust in the justice system.
The proposed rule follows other efforts the second Trump administration has taken to dismantle the DOJ’s internal accountability systems, including weakening its Office of Professional Responsibility and eroding whistleblower and civil service protections, and to attack its external accountability systems. The administration, for example, has sought to undermine the judiciary through public attacks and calls for the impeachment of judges who rule against it.
DOJ attorneys wield immense authority in investigations, criminal prosecutions, and civil enforcement actions. They are also involved in executive branch actions in two other significant ways. First, they represent the federal government in court to defend an administration’s programs, policies, regulations, and actions. Outside of court, the legal advice of DOJ attorneys, including from the department’s Office of Legal Counsel, often provides legal backing for the executive branch’s most consequential actions.
These powers have always been susceptible to abuse, and the modern system of checks to prevent those abuses relies on both internal and external safeguards. One of these external safeguards is state bar disciplinary bodies, which enforce baseline duties of honesty, good faith, and respect for the law on all attorneys — including DOJ attorneys — as part of each state’s licensing system for lawyers. These ethical rules are not merely aspirational. They function as enforceable constraints designed to prevent misconduct in the legal profession and to maintain public confidence in the legal system.
State Bar Disciplinary Systems’ Role in Constraining DOJ’s Abuses of Power
All attorneys must be licensed to practice law and are bound by a variety of rules and standards enforced by state and federal courts and bar authorities. That regime ensures that government lawyers are subject to independent ethical constraints. Congress reaffirmed this when it passed the McDade Amendment, which requires DOJ attorneys to comply with the professional responsibility rules of the states in which they practice “to the same extent and in the same manner as other attorneys in that State.”
To be sure, state bars have faced criticism for their lack of transparency, slowness in resolving misconduct complaints, and failures to pursue complaints at all. During this administration, for example, state bars have declined to pursue complaints against former Acting Deputy Attorney General Emil Bove and former Attorney General Pam Bondi. Still, the authority of state bars to revoke an attorney’s license, which affects a DOJ attorney’s ability to practice law, including after leaving the department, can serve as a significant deterrent against misconduct. Accordingly, state bar authorities, along with the judiciary, are critical external checks against abuses of power by DOJ attorneys.
State bars and the DOJ’s Office of Professional Responsibility, which is responsible for receiving and investigating allegations of DOJ attorney misconduct, have historically had a collaborative relationship. If the DOJ, for example, investigated a matter and determined that one of its attorneys committed misconduct, it might refer the matter to the attorney’s state bar for further discipline. Conversely, state bars might refer complaints against DOJ attorneys to the Office of Professional Responsibility for an initial investigation.
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