The Justice Department Wants to Make It Safe for Government Lawyers to Lie

By Deborah Pearlstein

Ms. Pearlstein is the director of the Princeton Program in Law and Public Policy and a visiting professor of law at the Princeton University School of Public and International Affairs.

For presidents, broadly speaking, lying is not against the law. For lawyers pursuing a president’s agenda, however, it’s a very different story.

Like all other lawyers licensed to practice in the United States, if they violate legal ethics rules, they can face sanctions in court or professional discipline, up to and including the permanent loss of their license to practice. Efforts to overturn the 2020 election foundered in court more than 60 times, before judges of both parties, in part because lawyers arguing President Trump’s case often feared telling a court the same extravagant lies that the president was telling the American people.

That was then. Now, under pressure to ignore a range of ethics rules, a large number of Department of Justice attorneys have quit, opting to lose their jobs but save their careers. Between these departures and a purge of legal staff members seen as insufficiently loyal to the president’s agenda, the department has lost thousands of lawyers. It shows: Briefs are riddled with errors. Attorneys come to court grossly unprepared. Worst, court orders stand violated — in some cases, it seems, because there weren’t enough lawyers available to ensure they were carried out.

To fill those empty seats, the department has launched an increasingly desperate effort to recruit new hires. (“Don’t be scared off by the transcript requirement,” a conservative law school reportedly told its students. “G.P.A. is not a strong factor.”) Even so, it seems too few lawyers are willing to take the chance. So the Trump administration last week offered up a different solution: a proposed rule that aims to shield Department of Justice lawyers from independent ethics investigations.

Such an arrangement would run afoul of a federal law known as the McDade Amendment, which says that government lawyers are subject to the ethics rules of the states in which they practice, “to the same extent and in the same manner” as every other lawyer licensed in the state. The proposed rule would be challenged in court immediately if it were ever to take effect. It shouldn’t get that far, however. It would do much more than potentially give department lawyers a free pass to lie on the president’s behalf. It would severely limit the courts’ ability to offer any kind of independent check on the executive branch.

Rules requiring lawyers to serve as honest officers of the court have been adopted by every state and the District of Columbia. They serve a host of purposes, starting with the basic right to fairness. These rules are also critical to the independence of the courts, which depend on access to reliable evidence and accurate representations by counsel.

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