by
Joe
Raedle/Getty)
Back
in
January,
I
issued
a
plea
to
lawyers
across
the
country
to
call
upon
whichever
professional
discipline
authorities
to
embrace
that
they
are
now
the
last
remaining
accountability
mechanism
for
Trump
administration
lawyers
repeatedly
lying
to
courts,
defying
judicial
orders,
and
generally
treating
the
profession’s
ethical
rules
as
suggestions.
Criminal
accountability
is
a
non-starter
between
sovereign
immunity
and
the
inevitable
blanket
pardons
Trump
will
issue.
The
Department
has
declared
“war”
on
judges
invoking
contempt
powers.
And
Justice
already
gutted
its
internal
disciplinary
resources.
All
that’s
left
to
deter
the
rampant
ethical
violations
committed
by
government
lawyers
is
for
local
bar
licensing
authorities
to
impose
discipline
—
disbarring
at
least
those
lawyers
at
the
top
—
so
they
don’t
walk
away
from
the
professional
damage
they’ve
wrought
and
seamlessly
pick
up
a
cushy
private
sector
legal
career.
Apparently
someone
at
the
Justice
Department
read
it.
Today,
the
DOJ
plopped
a
proposed
regulation
on
the
Federal
Register
that
would
authorize
Attorney
General
Pam
Bondi
to
block
any
state
bar
ethics
investigation
into
current
and
former
DOJ
lawyers
while
the
department
conducts
its
own
internal
review.
If
state
bar
authorities
refuse
the
AG’s
“request”
to
pause
an
investigation,
the
rule
allows
the
DOJ
to
“take
appropriate
action
to
prevent
the
bar
disciplinary
authorities
from
interfering
with
the
Attorney
General’s
review
of
the
allegations.”
Spoiler
alert:
there
is
no
action
the
DOJ
could
possibly
take
against
a
state
professional
regulator
that
would
be
“appropriate.”
Certainly
not
under
basic
principles
of
federalism
and
federal
statute.
But
the
vagueness
is
the
point.
Even
within
this
Department
of
Justice,
no
one
is
dumb
enough
to
think
this
is
legal.
It’s
a
threat
designed
to
bully
state
regulators
to
stay
silent
rather
than
have
to
dive
into
a
protracted
fight
with
the
deeper
pockets
of
the
federal
government.
Because
the
DOJ’s
internal
review
would
be
no
review
at
all.
The
Trump
administration
already
fired
both
the
DOJ’s
chief
ethics
official
and
the
head
of
the
Office
of
Professional
Responsibility.
Career
officials
working
for
the
Professional
Responsibility
office
—
an
entity
created
in
the
aftermath
of
Watergate
specifically
to
root
out
DOJ
misconduct
—
are
mostly
long
gone.
Not
only
is
no
one
minding
the
store,
the
people
in
charge
are
dousing
the
aisles
with
gasoline
and
making
plans
for
the
insurance
proceeds.
To
its
credit,
the
proposed
rule
doesn’t
even
really
pretend
to
commit
to
self-policing:
If
finalized
as
proposed,
whenever
a
third
party
files
a
bar
complaint
alleging
that
a
current
or
former
Department
attorney
violated
an
ethics
rule
while
engaging
in
that
attorney’s
duties
for
the
Department,
or
whenever
bar
disciplinary
authorities
open
an
investigation
into
such
allegations
without
a
complaint
having
been
filed,
the
Attorney
General
will
have
the
right
to
review
the
complaint
and
the
allegations
in
the
first
instance.
The
Attorney
General
or
her
designee
will
notify
the
applicable
State
bar
disciplinary
authorities
and
the
affected
lawyer
whether
she
intends
to
exercise
this
right,
and
will
request
that
the
relevant
State
bar
disciplinary
authorities
suspend
any
investigative
steps
that
require
information
or
other
participation
from
a
Department
attorney
in
response
to
the
allegations
pending
completion
of
her
review.
Not
a
promise
to
investigate
internally…
a
right
to
review.
Remember
how
the
DOJ
dragged
out
its
“review”
of
the
Epstein
files
until
Congress
forced
its
hand
—
and
even
then
the
Department
released
a
fraction
of
the
required
materials?
Expect
them
to
bring
that
exact
energy
to
any
disciplinary
investigation
they
“review.”
If
implemented,
Pam
Bondi
will
intercept
every
investigation
for
a
review
that
dies
on
Bondi’s
desk
just
like
the
Epstein
files
that
she
said
were
there.
Invoking
the
old
hits,
the
DOJ
claims
it
needs
this
new
rule
because
of
the
“weaponization”
of
bar
complaints.
over
the
past
several
years,
political
activists
have
weaponized
the
bar
complaint
and
investigation
process.
For
example,
political
activists
have
filed
bar
complaints
against
senior
Department
officials,
including
the
Deputy
Attorney
General,
the
former
Acting
Deputy
Attorney
General,
the
Deputy
Assistant
Attorney
General
for
the
Federal
Programs
Branch
of
the
Civil
Division,
and
the
former
interim
United
States
Attorney
for
the
District
of
Columbia,
as
well
as
career
Department
of
Justice
attorneys.
Even
more
troubling
than
the
recent
spate
of
State
bar
complaints
is
the
willingness
of
some
State
bar
disciplinary
authorities
to
give
credence
to
such
complaints.
Recently,
for
example,
certain
State
bar
disciplinary
authorities
have
undertaken
investigations
of
Department
attorneys
without
notifying
and
coordinating
with
OPR.
The
FBI
was
also
“weaponized”
against
Tony
Soprano.
Senior
DOJ
officials
find
themselves
the
subject
of
disciplinary
complaints
because
they
keep
lying
to
judges
and
publicly
declaring
that
they’re
at
“war”
with
federal
judges
as
an
applause
line
for
thirsty
right-wing
audiences.
When
career
DOJ
lawyers
are
getting
fired
for
telling
judges
the
truth
—
the
thing
Rule
3.3
literally
requires
lawyers
to
do
—
the
disciplinary
process
is
only
weaponized
against
senior
officials
because
they’re
committing
the
violations
we
built
this
weapon
to
prevent.
Congress
also
already
settled
this
question!
The
McDade
Amendment
—
28
U.S.C.
§
530B
—
could
not
be
more
clear
that
government
attorneys
“shall
be
subject
to
State
laws
and
rules…
governing
attorneys
in
each
State
where
such
attorney
engages
in
that
attorney’s
duties,
to
the
same
extent
and
in
the
same
manner
as
other
attorneys
in
that
State.”
Congress
passed
it
specifically
because
DOJ
tried
to
exempt
its
lawyers
from
state
ethics
rules
back
in
the
1990s,
and
Congress
said
no.
Almost
as
if
Congress
saw
this
coming.
In
an
effort
to
handwave
away
the
McDade
Amendment,
the
proposed
rule
cites
established
but
wholly
unrelated
laws
about
the
Attorney
General
having
the
authority
to
manage
and
discipline
her
own
attorneys,
and
then
tries
to
bootstrap
off
of
this
a
power
written
in
invisible
ink
that
allows
the
DOJ
to
invent
its
own
enforcement
mechanisms
to
allow
the
Department
of
Justice
to
be
the
actor
enforcing
the
state
ethics
regime
that
Congress
passed
the
McDade
Amendment
explicitly
to
prevent.
As
an
exercise
in
throwing
citations
into
an
argument
and
hoping
no
one
notices
that
they
don’t
make
any
sense,
it’s
not
as
egregious
as
the
brief
trying
to
save
Lindsey
Halligan’s
illegal
job,
but
it’s
close.
McDade
establishes
that
a
government
attorney
“shall
be
subject
to
State
laws
and
rules,
and
local
Federal
court
rules,
governing
attorneys
in
each
State
where
such
attorney
engages
in
that
attorney’s
duties,
to
the
same
extent
and
in
the
same
manner
as
other
attorneys
in
that
State.”
That
would
include
the
state’s
disciplinary
processes.
But
the
law
also
mandates
that
“The
Attorney
General
shall
make
and
amend
rules
of
the
Department
of
Justice
to
assure
compliance
with
this
section.”
Those
fluent
with
the
English
language
would
read
this
as
requiring
the
Attorney
General
to
get
rid
of
any
contrary
rules
purporting
to
handle
discipline
in
some
way
other
than
“the
same
manner
as
other
attorneys
in
that
State.”
Bondi
reads
this
language
as
granting
the
DOJ
the
power
to
write
new
rules
to
act
as
its
own
arbiter
of
state
ethics
rules.
The
Department
has
concluded
that
section
530B
permits
the
Attorney
General
to
establish
an
enforcement
mechanism
for
assuring
that
Department
attorneys
comply
with
State
ethics
rules.
So
Bondi
is
saying:
For
its
part,
the
Supreme
Court
has
also
weighed
in
on
this.
Leis
v.
Flynt
confirmed
that
“since
the
founding
of
the
Republic,
licensing
and
regulation
of
lawyers
has
been
left
exclusively
to
the
States.”
It’s
hard
to
write
an
ambiguity
into
McDade
when
it
was
written
in
the
context
of
that
case.
Bondi
claims
Congress
was
“silent
on
enforcement
mechanisms,”
but
it
didn’t
need
to
speak
up
because
everyone
understood
—
until
this
morning
—
that
“licensing
and
regulation
of
lawyers
has
been
left
exclusively
to
the
States.”
There’s
no
ambiguity
for
executive
branch
rulemaking…
this
is
all
long
settled.
But
the
DOJ’s
mob-inspired
leadership
wants
a
rule
in
place
to
push
state
bar
authorities
to
abdicate
their
responsibilities,
even
if
the
law
isn’t
on
the
DOJ’s
side.
It’s
the
same
playbook
that
convinced
nine
Biglaw
firms
to
sign
over
millions
of
dollars
and
all
their
dignity
to
avoid
a
fight
that
they
would’ve
absolutely
won.
The
law
doesn’t
provide
much
comfort
if
the
other
side
is
willing
to
make
vindicating
those
rights
difficult
and
expensive.
If
Paul
Weiss
worried
about
the
costs
of
a
fight
with
the
government,
what
chance
does
some
small
state
bar
committee
have?
This
rule
drops
while
Lindsey
Halligan
—
the
insurance
defense
attorney
who
cosplayed
as
a
U.S.
Attorney
—
faces
renewed
bar
complaints
after
multiple
federal
judges
found
she
made
“fundamental
misstatements
of
the
law”
to
a
grand
jury,
served
without
legal
authority,
and
had
no
more
power
to
sign
filings
than
any
random
person
walking
down
the
street.
It
comes
after
courts
have
flagged
the
DOJ
repeatedly
violating
orders.
The
proposed
rule
also
claims
authority
over
complaints
against
“former”
DOJ
lawyers
—
an
effort
to
do
a
solid
for
Jeffrey
Clark,
facing
possible
disbarment
in
D.C.
for
the
whole
“fabricate
election
law
violations
in
order
to
overturn
the
election”
trick.
Accountability
mechanisms
are
already
failing.
State
bars
have
been
punting
—
Virginia
initially
refused
to
investigate
Halligan,
Florida
invented
a
“constitutional
officer”
doctrine
to
shield
Bondi,
New
York
referred
complaints
about
Emil
Bove
to
DOJ’s
own
gutted
internal
office.
The
proposed
rule
would
institutionalize
this
cowardly
buck
passing
by
making
DOJ
the
official
gatekeeper
for
all
complaints
against
its
own
lawyers.
If
this
rule
goes
into
effect,
it
tells
every
government
lawyer
to
do
whatever
the
administration
tells
them,
and
not
to
worry
about
how
many
ethical
rules
might
get
broken
along
the
way.
The
DOJ
will
run
interference
with
the
only
authorities
empowered
to
take
a
lawyer’s
license.
It
creates
a
class
of
lawyers
who
are,
for
all
practical
purposes,
above
professional
accountability.
The
good
news,
such
as
it
is,
is
that
this
proposed
rule
is
subject
to
a
public
comment
period
before
it
can
be
finalized.
The
better
news
is
that
it
almost
certainly
cannot
survive
legal
challenge
and
the
McDade
Amendment
is
a
statute
that
says
the
exact
opposite
of
what
this
rule
proposes.
The
bad
news
is…
who
is
going
to
fight
that
case?
This
should
light
a
fire
under
every
lawyer
to
do
more
to
support
local
disciplinary
authorities.
Speak
out,
urge
action,
and
—
if
necessary
—
volunteer
pro
bono
legal
services
to
fight
back
against
this
rule.
Professional
discipline
is
the
only
accountability
left
for
Trump’s
lawyers.
And
now
we
know
that
they
understand
that
too.
Trump
DOJ
Pushes
to
Sideline
State
Bar
Ethics
Investigations
[Bloomberg
Law]
DOJ
Proposed
Rule
—
Federal
Register
[Federal
Register]
The
Department
of
Justice’s
Broken
Accountability
System
[Brennan
Center
for
Justice]
A
Plan
to
Hold
DOJ
Leadership
Accountable
for
Undermining
the
Rule
of
Law
[Justia
Verdict]
Earlier:
Disbar
Them
All:
The
Only
Accountability
Left
For
Trump’s
Lawyers
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a
Managing
Director
at
RPN
Executive
Search.