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The Justice Department proposed a new rule on Wednesday purporting to block state bars from investigating and punishing DOJ lawyers accused of violating state ethics requirements. Under this rule, Attorney General Pam Bondi could freeze state bars’ probes until the department has undertaken its own independent review of any allegations—a black-box process that could stretch on extensively. Wielding this new power, Bondi could essentially quash any state investigations into ethics violations by DOJ lawyers, including accusations that these front-line attorneys lied in court, by allowing “reviews” that might last indefinitely. If upheld, the rule would bail out the many, many DOJ lawyers who allegedly breached their ethical obligations in defending the Trump administration.
On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed Bondi’s sweeping proposal and its (slim) odds of standing up in court. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: We have seen a lot of complaints lodged with state bars against a whole bunch of Donald Trump’s Justice Department supervillains, including Pam Bondi herself, Todd Blanche, Ed Martin, and Emile Bove, who is now a judge. In a truly extraordinary piece of timing, the New York Times reported on Thursday that the on-again, off-again interim U.S. Attorney Lindsey Halligan is also facing an ethics probe in Florida, her home state, by its bar. But the DOJ is evidently now saying: No, no, no, nobody can be investigated ever again. How does that work?
Mark Joseph Stern: First, let me just remind you that there is no federal bar, which is an important background point to understand. State bars license and oversee the practice of law. So when lawyers violate ethics, it is the state bars that step in and impose punishments. The Justice Department has its own process for investigating and penalizing its lawyers accused of violating ethics, but that is not a substitute for state bar investigations and punishments. The DOJ cannot impose the same kinds of professional penalties, including disbarment.
And yet, as you said, Bondi is now claiming the power to stop state bars from investigating DOJ lawyers for ethical violations in the course of their duties. She claims that as attorney general, she “shall have the right to review the allegations in the first instance” and force state bars to “suspend any parallel investigations or disciplinary proceedings until the completion of the review.” What that actually means is that she could freeze real state bar investigations into DOJ lawyers—the ones that carry real professional penalties—by launching her own “investigation.” But her probe would be a black box that she could slow-walk indefinitely. And as long as her fake federal investigation is ongoing, she could prevent state bars from ever undertaking any kind of investigation into the lawyers who face complaints or taking any kind of action against them.
This is going to seem a very precious and credulous question, but I’m going to ask it anyway. It seems that if the federal government could just stop state bar investigations of any one of the lawyers that work for the Justice Department, it would’ve been doing that for a long time. But it hasn’t been doing that. It has not been done. Is this legal? Is this lawful?
No, the government hasn’t been doing that, because it would be illegal. And let me tell you why: A federal statute known as the McDade Amendment says that DOJ attorneys “shall be subject to State laws and rules … to the same extent and in the same manner as other attorneys in that State.” So when a DOJ lawyer is licensed in Florida, like Halligan is, she must follow the ethical requirements of the Florida bar.
Bondi’s Justice Department argues that DOJ lawyers can still be insulated from state bar investigations because this statute says the attorney general can “make rules” to “assure compliance” with the McDade Amendment. But the rule she’s proposing would not “assure compliance” with the statute—it would repeal part of the statute! Again, Congress said clearly that DOJ lawyers are “subject to” state bars’ rules “in the same manner” as every other attorney in the state. That means, obviously, they are subject to the bar’s rules, which necessarily includes the bar’s authority to enforce those rules.
So how exactly does the DOJ intend to enforce this plan?
Well, the proposal itself is extremely ambiguous as to how, exactly, the DOJ would actually suspend state bar investigations. It just says that the department shall “take appropriate action to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations.” That almost certainly means going to federal court to get an injunction against the state bar’s investigation.
But here’s the problem, and it’s something the proposal does not address at all: The Supreme Court has expressly prohibited such injunctions. In a case called Middlesex County Ethics Committee v. Garden State Bar Association, the court unanimously ruled that federal courts must avoid interfering with legitimate and ongoing state bar disciplinary proceedings, because states have “an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses.”
So under Middlesex, the federal judiciary must abstain from meddling with these proceedings until they are complete. If the Justice Department tried to enforce this new proposal to halt a state bar investigation, it would run smack-dab into this precedent, and the courts would almost certainly refuse to hear it. I was honestly kind of shocked that the proposal didn’t even acknowledge this insurmountable obstacle. But I guess that’s just the kind of sloppy and dishonest lawyering that’s led to some of these ethics complaints in the first place.