Department of Justice Attorneys Propose Regulation Creating Ethics-Free Zone Violating the Rule of Law and Inviting Criminal Behavior

The views expressed on the Expert Forum are those of the authors writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters. 

In his 1776 Thoughts on Government, founder John Adams stated, “The United States is a country of laws and not of men.” This means the U.S. Constitution, state law, and federal law, apply equally to “[all] persons. Institutions, and entitie[s].” This is the American principle of the rule of law.

Considering rule of law principles, attorneys must balance their representation of clients with their accountability to laws and ethical obligations. Otherwise, the rule of law requires they be disciplined by their state bar association. In contradiction to the rule of law, the Department of Justice (DOJ) is proposing a regulation that would shield its attorneys from state ethics board investigations and discipline because of who they are --- government attorneys.

Review of State Bar Complaints and Allegations Against Department of Justice Attorneys

 While the DOJ’s mission is to uphold the rule of law, there have been instances of DOJ lawyers failing to uphold that mission pre-Watergate and since. DOJ has been part of an executive branch whose “Watergate was a culmination of the growth and abuse of presidential and executive power since 1940 in both domestic and foreign affairs, including the many deceits of World War II and the Cold War, the lies of the Vietnam War, and the "dirty tricks" of the CIA.” The proposed regulation gives life to executive and presidential power abuses, rather than create a rule of law check on it.

The proposed regulation entitled, “Ethical Standards for Attorneys for the Government,” was supposed to “implement” the 1999 McDade Amendment to temper the misguided acts of overzealous prosecutors and provide so-called “guidance” to DOJ attorneys.  While sounding innocent, it sets out to give the Attorney General (AG) the right to suspend any state bar investigation and attorney disciplinary proceeding indefinitely until the AG investigates the allegations. As the National Association of Criminal Defense Lawyers (NACDL) recognized, the regulation allows, “[t]he government's lawyers [to] operate in an ethics-free zone of their own making.” DOJ attorneys would be ethically untouchable.

Watergate: Historical Evidence DOJ is Prone to Ethics Abuses

 The DOJ’s mission is to uphold the rule of law. However, a hundred years after its creation, the DOJ participated in the most consequential criminal cover-up of the modern era: Watergate.

Watergate involved the 1972 break-in of the Democratic National Committee offices during which the premises were burglarized and listening devices planted. It was later uncovered that President Nixon and DOJ officials were primarily involved in the incident. As the New York Times reported, “[t]he plot to tap some telephones in the Democratic National Committee's headquarters at Watergate was . . . literally hatched [at] the Department of Justice where . . . then Attorney General, John N. Mitchell, sat, [and listened,]” to the plot. AG Mitchell, several influential government attorneys, and other participants went to jail as a result of their actions. As an additional punitive measure,  some of the attorneys involved were disbarred by the states that issued their law licenses.

Watergate thus revealed the DOJ’s vulnerability to ethical abuse and criminal conduct. In 1978, AG Griffin Bell recognized these weaknesses when he spoke to DOJ attorneys on the “Independence of the Department of Justice.” Outlining the mission of the post-Watergate DOJ, Bell explained the DOJ was already corruptible because of its great power as the nation’s top law enforcement agency. To him, Watergate was no surprise. This is why Bell believed the Department needed to carefully monitor its attorneys’ behavior, and have independent, non-DOJ oversight.

AG Bell understood that the public was concerned about government corruption in the DOJ that “some decisions at Justice may be the products of favor, or pressure, or politics.” He also understood that the public belief of equal justice is essential for a functioning democracy. Bell understood this  and called for the Justice Department to be, “a neutral zone in the Government” because “in our form of government there are things that [need to be] non-partisan, and one is the law[.]”

Today, DOJ leadership appears to have adopted stances that are diametrically opposed to Bell’s viewpoints on the DOJ.  Former AG Pam Bondi declared  the Department of Justice’s role is now to implement President Trump’s agenda and target Americans who did not agree with those policies. And while Bondi may have thought the Department’s actions would go unnoticed, that has not been the case. According to a 2025 Marquette Law national survey, 55% of Americans believe the DOJ has filed unjustified cases against Trump’s political opponents. Americans see the rule of law being replaced by political vengeance.  For attorneys in the DOJ filing these cases, these are serious breaches of the rules of professional conduct.

Limitations Set by The Constitution, Congress, and the Courts

For the DOJ to abuse its power, it would need to shield itself from state bar regulators. This option does not exist under law. The Tenth Amendment of the ‘Bill of Rights’ reads,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Under the Tenth Amendment, the federal government and the individual states have certain, distinct powers under the doctrine of federalism. Historically, regulating the practice of law is a power belonging to the states alone.

The United States Supreme Court has recognized the constitutional power of state bars to adopt rules relating to the admission to practice law in their states. As the Court has put forth,

. . . Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers. (emphasis added).

The states have, “a special responsibility for maintaining standards among members of the licensed professions [ . . .] since lawyers are essential to the primary governmental function of administering justice, and have historically been officers of the courts.”

If there was any doubt as to the states’ responsibility over licensing lawyers, that is put to rest by U.S. v. Ferrara, a case factually similar to the situation here as the DOJ seeks to change existing law through a regulation.  In Ferrara, the federal government tried to prevent the New Mexico chief counsel from taking disciplinary action against a federal attorney who was licensed to practice law in New Mexico but was living and practicing in the D.C. Circuit. Both the district court and appeals court rejected arguments that government attorneys were not beholden to their state bar for unethical conduct “necessary and proper” to do their job. Of course, the obvious way for DOJ attorneys to do their job ethically is all the time.

Congress has also spoken on the topic with the McDade Amendment, a law current DOJ leadership has mischaracterized as vague. The measure was passed in 1998 amid concerns of overzealous federal prosecutors. In the plain text of the McDade Amendment, Congress clearly stated government attorneys:

[S]hall 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.

The amendment did not change the long-standing power that the licensing and regulation of attorneys is left to the states; it re-enforced it.

Examples of the DOJ Seeking to Cover Up Unethical Snafus and Potential Criminal Behavior for a Political Purpose

Still, the current DOJ is looking for an off-ramp to avoid the ethical snafus it has created and potential criminal behavior it is protecting for political reasons. For example, the disastrous implementation of immigration policy has led to the death of two Americans and the arrest of countless Americans for exercising their constitutional rights. The current administration has militarized law enforcement using it against people living in the U.S., including citizens. This militarization has been aimed at Democratic states like Minnesota and Illinois, but not Republican states with much larger immigrant populations like Texas and Florida. To make matters worse, the F.B.I. will no longer investigate ICE confrontations, including violent encounters, which could lead to the prosecution of ICE agents.

Likewise, look to the DOJ attack on ‘Big Law’ where ethical standards were violated and potential state, federal, and international crimes committed. Other examples of the DOJ covering up unethical or possibly criminal behavior include the outrageous forgiveness of past and current tax crimes of the Trump family and creation of the 1776 Slush Fund to reward so-called “J6ers” by  his former personal attorney and Acting Attorney General Todd Blanche. The settlement, mired by Blanche’s conflict of interest, has been described as a potential “fraud on the court” and resulted in disciplinary referrals to the state of New York and Florida. All of these events (and many more) confirm an environment exists where government attorneys are allowing themselves to be used unethically for politically motivated acts contrary to the rule of law, simply because they are the top law enforcement agency in the nation.

Conclusion     

The proposed regulation undercuts the well-defined constitutional role of the states to license and regulate attorneys.  It creates an ethics-free zone for DOJ attorneys to provide cover for criminal conduct. The claim that the DOJ needs protection from state ethics investigations and discipline to put the policies of the Trump administration into practice is pretext to cover-up unethical and even illegal behavior. Ultimately, state bar associations, not the DOJ, decide whether to give a specific lawyer a license to practice law in their state or to take the license away.

If people view our federal law enforcement officials as weaponizing the law against the President’s political opponents including ordinary citizens, the rule of law ceases to exist. When power goes unchecked, Founder John Adams said it best: “[M]an is dangerous . . . and . . . power whether vested in many or few is ever grasping.”  State bar associations are well-equipped to reclaim unchecked power through ethics investigations and proceedings, not the DOJ.

James “Jim” Saranteas is a practicing attorney of 25 years with experience. Jim is a recipient of Loyola University Chicago School of Law’s Board of Governors prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He continues to advocate on social issues as well as help law students with their advocacy skills. Jim is a volunteer state lead for Lawyers Defending American Democracy (LDAD).