Department of Justice proposes putting its attorneys above the law 

One of the most effective checks on the Trump administration has been the federal courts. Not surprisingly, the administration is now trying to limit the courts’ ability to curb its excesses. 

It is doing so by trying to loosen the ethical controls on the Department of Justice lawyers who represent the government, making it easier for them to evade accountability and achieve the administration’s political goals.  

Courts must be able to rely on the representations of the lawyers who appear before them. When a lawyer makes factual statements or legal arguments to a judge, they are subject to strict ethical standards. Those standards help to ensure that the court has accurate information to make its decision, and are fundamental to the integrity of the judicial process. 

Many federal courts have observed that lawyers in the Trump Department of Justice have provided incomplete or misleading information about potentially life-altering issues. These include the whereabouts of individuals in the custody of Immigration and Customs Enforcement, or the reasons why a court order to release such persons had been ignored. As one federal judge in Minnesota put it, the government had offered excuses “again, and again, and again, and again, and again, and again” for its “oversights and disobedience of court orders.”    

The ethical standards for licensed attorneys, including those employed by the DOJ, are imposed and enforced by the states. They are an independent check on the temptation to mislead the court, disregard its orders, or engage in other unethical conduct. 

Rather than requiring more accountability of its attorneys, the department is proposing to eviscerate the controls that do exist, by making itself the judge of whether misconduct has occurred. This is why alarm bells should be sounded by the Department of Justice’s recent decision to issue a proposed rule which would turn the system on its head. 

The draft rule would effectively empower the department to indefinitely interrupt state disciplinary investigations by directing an internal “review” of allegations of misconduct against its own attorneys. Further, it ominously provides that should the relevant state bar disciplinary authority refuse the attorney general’s “request” to halt its investigation, “The Department shall take appropriate action to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations.”  

I am familiar with both sides of this issue, having served as a government lawyer, and as a judge. In the 1990s, I worked for the department as an assistant U.S. attorney. I later served for 15 years as the chief justice of the Hawaiʻi Supreme Court, which is ultimately responsible for the licensing and discipline of attorneys in Hawaiʻi. 

Nearly 30 years ago, Congress emphatically rejected an attempt by the DOJ to free its attorneys from certain state ethics rules. It enacted a statute, 28 U.S.C. § 530B, that makes clear that the department’s lawyers are subject to the same state ethical requirements as other licensed attorneys. By its terms, § 530B was enacted precisely to prevent the department from doing what it is proposing now.  

The DOJ’s proposed rule is flawed in other ways too. Most notably, it gives the power of review to the department itself, to the exclusion the independent check that state disciplinary proceedings currently provide. The proposed rule effectively allows the department — which is the employer of the attorney under investigation — to say “hold off, we will handle this in-house.”  Other attorneys do not enjoy this type of protection. 

The DOJ’s arguments in support of the proposed rule are unconvincing. The department accurately notes that some senior DOJ officials have been the subject of state bar ethics complaints. But it goes on to suggest — without citing any specific examples — that some state bar authorities have failed to cooperate with the department’s internal ethics investigators. However, there can be legitimate reasons, such as risk of destruction of evidence or coercion of witnesses, for state authorities to keep an investigation confidential, at least in its early stages.  

Since the founding of our nation, the regulation of the legal profession has been left exclusively to the states and the District of Columbia. This centuries-old system was recognized by the U.S. Supreme Court in its 1979 Leis v. Flynt opinion, and is consistent with the Tenth Amendment principle that powers not delegated to the federal government by the Constitution are reserved to the states. The department’s proposal, however, would displace that settled allocation of authority by allowing the department to suspend or override state disciplinary processes, in violation of fundamental principles of federalism.  

The proposed rule is bad law and bad policy. Given the current administration’s proclivity to test the boundaries of the law, it is essential that we hold the department’s lawyers to the same high ethical standards that all other lawyers must meet. The department should withdraw the proposed rule forthwith.  

Mark Recktenwald served as Chief Justice of the Hawaii Supreme Court and as an Assistant U.S. Attorney for the District of Hawaii.  He is a member of Keep Our Republic’s Alliance of Former Chief Justices, which advocates in support of the rule of law.    

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