State bar associations play an important accountability role across the country. Trump administration lawyers know that their legal licenses are subject to censure, because practicing law in the United States remains a privilege, not a right. But if Attorney General Pam Bondi has her way, even this guardrail could disappear.
Last week, Bondi proposed a new rule that would allow the Department of Justice to take over investigations of alleged attorney misconduct of its own lawyers. State bar authorities would have to pause their investigations while the Justice Department conducts its own probe. The rule gives the DOJ the ability to delay or even derail a state investigation.
The rule gives the DOJ the ability to delay or even derail a state investigation.
It doesn’t feel like a coincidence that there has been a series of state ethics complaints filed against Trump administration lawyers, including Bondi, Deputy Attorney General Todd Blanche and federal prosecutors handling immigration cases. President Donald Trump’s polarizing pardon attorney Ed Martin is currently facing just such a complaint from the D.C. Bar.
As outlined in the Federal Register, the proposal argues that “political activists have weaponized the bar complaint and investigation process.” Of course, even if it were true that frivolous complaints were being filed against Justice Department lawyers, state bar grievance authorities should be able to weed them out just as effectively as the department’s own investigators. In fact, having an independent review process would provide more credibility than the DOJ would in dismissing such claims.
Federal law requires all federal prosecutors to comply with the ethics rules of the state where they practice law, including the District of Columbia. The new rule requires Justice Department lawyers to obey the substance of their state’s ethics rules, but gives the DOJ the authority to investigate violations. According to the proposal, whenever a bar grievance is filed, “the Department will have the right to review the allegations in the first instance and shall request that the bar disciplinary authority suspend any parallel investigations until the completion of the Department’s review.”
From there, multiple scenarios are possible. First, “if the Attorney General decides not to complete her review,” the state bar disciplinary authorities “may resume their investigations or disciplinary hearings.” Second, if the attorney general finds misconduct, “the State bar disciplinary authorities will then have the option of beginning or resuming their investigations or disciplinary proceedings” and, if appropriate, “to impose additional sanctions beyond those already imposed by the Department, including suspension or permanent disbarment.”
But what is missing from the language of the rule itself is a potential third scenario. What if the attorney general clears the attorney of misconduct? On that, the rule is silent.
Say, for example, a federal prosecutor in Minnesota is accused of making false representations to an immigration judge. The judge or opposing party could file a grievance with the Minnesota Office of Lawyers Professional Responsibility. Under the new rule, the state bar would be required to stand down and await a DOJ investigation, with no provisions for time limits or transparency. Of course, even the delay could compromise the subsequent Minnesota probe. But if the Justice Department clears the lawyer, it is also unclear what happens next. According to Bloomberg, “If the DOJ finds no violation, that blocks the state from investigating the alleged infraction.” This conclusion may be a fair inference for a department that has thrown its weight around. According to the proposed rule, “the Attorney General retains the discretion to displace State bar enforcement and to create an entirely Federal enforcement mechanism.”
But even if the rule merely delays state enforcement, the DOJ could slow-walk a grievance into oblivion. According to a comment posted by the Illinois State Bar Association, the DOJ is attempting to “shield” its lawyers from accountability. The proposed rule also includes an ominous provision that if bar disciplinary authorities refuse the attorney general’s request, “the Department shall take appropriate action to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations.”
Even if the rule merely delays state enforcement, the DOJ could slow-walk a grievance into oblivion.
In the decades since the Watergate scandal, the Justice Department has conducted robust investigations of allegations of ethical misconduct by its own attorneys and imposed discipline. In fact, it was common for state bar authorities to wait for the DOJ to complete its investigations before initiating their own probes, because the federal process held attorneys to standards even higher than state ethics rules. But that landscape changed last year, when Bondi fired the head of the department’s Office of Professional Responsibility and its chief ethics officer. Now there is a risk that DOJ lawyers will be even further sheltered from meaningful ethical oversight.
In the first nine days of the 30-day notice and comment period, the proposed rule has attracted more than 30,000 comments. And once implemented, the rule will no doubt invite legal challenges and ultimately could be struck down. But until then, it threatens to give carte blanche to DOJ lawyers who represent the Trump administration not just zealously but with impunity, knowing that the attorney general can simply delay or even block state bar ethics complaints. And the rule represents one more openly regressive blow against the checks and balances that are essential to democracy.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst.
