Federal government lawyers play a fundamental role in upholding the rule of law. Now the federal government is suing to place them above the law.
States have had the authority to license and discipline lawyers since the founding of our nation. And federal law requires attorneys working for the Justice Department to meet the same state ethical requirements as other licensed attorneys.
However, the Trump administration’s DOJ has tried to undermine these well-established principles. First, it proposed an ill-conceived rule that would empower the DOJ to suspend state disciplinary proceedings indefinitely while it conducted an internal review of allegations against its attorneys. This proposal contravenes federalism principles and would remove an important check on government lawyer misconduct.
More than 1 million comments were submitted on the proposed rule, with initial reviews suggesting they were overwhelmingly in opposition. Perhaps sensing that the proposed rule would go nowhere, the DOJ launched a new attack: filing a federal lawsuit to block a disciplinary proceeding pending in the DC Court of Appeals, the highest court of the District of Columbia.
The defendants include the DC Bar’s Board on Professional Responsibility and the DC Court of Appeals. The lawsuit challenges the board’s recommendation to the court that former DOJ attorney Jeffrey Clark be disbarred for his role in attempting to overturn the 2020 election and accuses the defendants of “weaponizing” the disciplinary process for political ends. Acting Attorney General Todd Blanche said, “The DC Bar has long acted as a blatantly partisan arm of leftist causes. No more.”
The legal theories at the heart of the lawsuit are deeply concerning and have sweeping implications. The DOJ seeks to extend the US Supreme Court’s holding in Trump v. United States, which provided absolute presidential immunity “for conduct within his exclusive sphere of authority,” to apply to Executive Branch attorneys participating in “internal Executive Branch deliberations.” The complaint further claims that Supremacy Clause immunity prevents DC from “regulating” Jeffrey Clark for the performance of his duties as an agent of the US.
Extending presidential immunity in this way would effectively shield Executive Branch attorneys from any scrutiny, including by the very entities responsible for ensuring qualified, ethical lawyering by all licensed attorneys. So too would applying Supremacy Clause immunity to circumstances where Clark performed allegedly unethical acts that fell outside his official duties.
Blanket immunity—a blunt instrument—offers a free pass to DOJ attorneys unlike any conferred on any other class of lawyers. This is especially troubling because the complaint suggests immunity applies to all Executive Branch deliberations, not solely those in which the president participates.
The lawsuit is premature. The DC Court of Appeals hasn’t resolved Clark’s challenges to the board’s findings and its recommendation to disbar him. It could, for example, reject the board’s recommendation and impose a lesser sanction, such as suspending Clark’s license or censuring him.
Attorneys shouldn’t be subject to discipline for purely internal deliberations. But, as the board’s 104-page report shows, there is clear and convincing evidence that Clark’s actions crossed the line from brainstorming to intentionally attempting to falsely claim that the DOJ had “identified significant concerns” with the 2020 elections. At the very least, the DC Court of Appeals should be allowed to resolve Clark’s many challenges to the report and then determine the appropriate outcome.
The DOJ historically has held its attorneys to the highest ethical standards. Yet it has never declared its internal review processes to be superior to those of the states and the District of Columbia. It’s well-established that the DOJ’s lawyers comply with the same high ethical standards as all other lawyers. All attorneys must follow the rules of professional conduct established by the states and by DC.
The legal profession is responsible for maintaining adequate standards of conduct, upholding the rule of law, and protecting the legal system’s integrity. Courts must be able to trust the lawyers who appear before them, and the public must be able to trust that the judicial system enforces standards of honesty and integrity.
The DOJ’s quest to shield its attorneys from discipline—through its proposed rule and now this lawsuit—threatens the integrity of our justice system. The DC Court of Appeals issued Clark a license to practice law, and it must be able to decide what action to take on that license, based on the voluminous record developed during the board’s proceedings.
Either the DOJ should withdraw its complaint, or the federal district court should dismiss it, allowing the DC Court of Appeals to finish its work.
This article does not necessarily reflect the opinion of Bloomberg Industry Group Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Author Information
Mark Recktenwald was chief justice of the Hawaii Supreme Court and an assistant US attorney for the District of Hawaii and a member of Keep Our Republic’s Alliance of Former Chief Justices.
Scott A. Welder is a student at the William S. Richardson School of Law at the University of Hawaii at Mānoa.
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