Senior Government Lawyers Are Shirking Ethics Rules With Impunity

The Trump administration’s attacks on the rule of law have been well documented. We’ve read, for example, of the administration’s vindictive prosecutions, attacks on judges and law firms, and destruction of the Justice Department. But one important aspect of this onslaught has not been spotlighted sufficiently: the assault on the traditional role of state courts and bar associations in policing government lawyers’ professional conduct.   

Lawyers have historically been licensed and regulated by the highest courts of their states of admission. These courts establish rules of professional conduct and adjudicate alleged violations of those rules, with investigations and hearings typically delegated to administrative entities made up of members of that state’s bar. In fact, the practice of law may well be the most successful case of professional self-regulation in the United States. Rules of professional conduct set high standards for values like candor, protecting client confidences, avoiding conflicts of interest and—woven throughout those rules—protecting the rule of law. State disciplinary systems can and do sanction lawyers who violate these rules, including through permanent disbarment. 

Government lawyers are subject to all the same standards as private-sector lawyers. Indeed, state legal ethics rules set additional standards for prosecutors since, as Attorney General (and later Supreme Court Justice) Robert Jackson said in a famous speech:

The prosecutor has more control over life, liberty, and reputation than any other person in America .... He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.

Accordingly, state courts have, on a number of occasions, sanctioned assistant U.S. attorneys for violating ethics rules in the course of prosecutions, in several cases over objections that the lawyer’s federal status insulated him or her from state oversight.

In the 1980s, controversy arose regarding the ability of federal prosecutors to contact persons they knew to be represented by counsel, which is universally prohibited by state rules. The Justice Department argued that the Supremacy Clause of the U.S. Constitution allowed it to establish its own ethical standards for its lawyers. Congress subsequently weighed in by enacting the “McDade Amendment” in 1998. That enactment provides that Justice Department lawyers—from the attorney general on down—“shall be subject to State laws and rules ... to the same extent and in the same manner as other attorneys in that State.” Since then, the Justice Department’s Office of Professional Responsibility has conducted initial investigations of ethics complaints made to it, but where it has found misconduct, it has referred cases to the relevant states.

But the current administration and its allies have been aggressively pushing against established norms in legal ethics as in other fields—and state supreme courts have largely been acquiescing. The net result is that federal government lawyers are becoming insulated from investigation and discipline regarding their compliance with rules of professional conduct. As a result, they are increasingly free to ignore those rules.

The move to exempt these lawyers from oversight is grounded in a combination of legal theories. The first is a very strong interpretation of the “unitary executive theory”; the idea that, “[u]nder our Constitution, the ‘executive Power’—all of it—is ‘vested in a President’” who is “the only person who alone composes a branch of government,” acting through people he can hire or fire. The second is that the doctrine of separation of powers requires that neither the legislature nor the judiciary can trench even remotely upon the powers of the executive branch.

As the Supreme Court divined in its Trump v. United States decision, these two theories give rise to a third: that the president must be absolutely or presumptively immune from criminal prosecution for official acts. Related to these ideas is the notion that the only legitimate form of accountability for government officers is elections—that any other form of oversight is “antidemocratic.” These concepts are being pushed to extremes to fend off state-based ethical supervision of a range of lawyers working for federal and state government, as demonstrated by three recent, high-profile examples.

Attorney General Pamela Bondi

The most prominent—and alarming—example is that of Attorney General Bondi. Last summer, a long list of civil society groups, law professors, and prominent lawyers filed a complaint against her with The Florida Bar. The complaint alleged that Bondi was violating several of Florida’s rules of professional conduct by coercing Justice Department lawyers into violating their ethical obligations when it suited the administration’s interests—on pain of being fired. For example, Justice Department lawyer Erez Reuveni was fired for telling the truth to a judge (as he was required to do by the rule of “candor to the tribunal”).

Florida has a rule that lawyers occupying offices named in the Florida Constitution (an extensive list that includes, for example, school board members) aren’t subject to ethics oversight until they leave office. The bar interpreted this “constitutional officer” doctrine to apply to Bondi—even though it has never been applied to any federal official and her office is not named in the U.S. Constitution. The Florida Supreme Court refused to review that action, and most recently The Florida Bar revised its rules to codify the exclusion for federal appointees, ensuring that they will not investigate the attorney general’s behavior. The net result is that Bondi—who is admitted only to he Florida bar—is exempt from ethical oversight until she leaves office, which could be as late as 2029.

Even then, her license may not be in any jeopardy. Florida’s attorney general filed an amicus brief in the Florida Supreme Court litigation that cites Trump v. United States in arguing that Bondi is entitled to immunity to avoid “chill[ing] her from taking the bold and unhesitating action required of a high-ranking federal officer.”

Former Assistant Attorney General Jeffrey Clark

During his time in the first Trump administration, Assistant Attorney General Jeffrey Clark tried to get the acting attorney general and his deputy to issue a letter falsely stating that the Justice Department had identified election irregularities in Georgia and other states that may have impacted the outcome of the 2020 presidential election. When the two Justice Department officials refused to sign it, Clark repeatedly went behind their backs and convinced the president to make him attorney general so that he could issue the letter. That move failed in a long meeting in the Oval Office, just three days before Jan. 6, in which the rest of the Justice Department’s leadership and several White House counsel all threatened to resign unless Trump abandoned the plan.

The D.C. Court of Appeals is currently considering a recommendation that Clark be disbarred. He and his amici are arguing that a president can be “bold and unhesitating” only if every lawyer that he deals with is similarly immune not just from criminal prosecution but also from ethical oversight. Clark’s lawyers have made clear that they’ll appeal this issue to the Supreme Court if the D.C. court rules against them.

In both Bondi’s and Clark’s cases, the Justice Department filed amicus briefs obliquely indicating that it would no longer abide by the McDade Amendment, arguing that no law “suggests that State bars enjoy a roving commission to police the conduct of Department attorneys ... through the putative regulation of attorney bar licensure.” Deputy Attorney General Todd Blanche made this threat more expressly in remarks to the Federalist Society on Nov. 7, 2025, where he declared that the Justice Department will change its rules to take “activist, obnoxious bars ... out of the picture” by claiming sole authority to adjudicate ethics complaints against its lawyers. (In the same speech, Blanche also announced that the Justice Department was at “war” with “rogue activist judges.”)

How exactly Blanche’s threat against the established disciplinary processes would work will depend on what the promised new rules actually say, but Blanche’s declaration directly conflicts with the McDade Amendment—which is federal law—as well as a 1979 Supreme Court decision (Leis v. Flynt) stating explicitly that, “[s]ince the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States,” including “the discipline of lawyers.” Blanche’s announcement is especially alarming given that he and Bondi have fired or otherwise forced out the people who would in theory be responsible for ethics oversight at the department. By early March of this year, they had fired both the Justice Department’s chief ethics official and the head of the Office of Professional Responsibility. The latter’s job remains open.

Brent Webster

In one of the best demonstrations that state discipline of lawyers is meaningful until politicized, the Texas Commission for Lawyer Discipline acted courageously in the case of Brent Webster, the first assistant to Texas Attorney General Ken Paxton. The commission filed a disciplinary complaint against Webster for suing four other states for spurious improprieties during their administration of the 2020 presidential election, a lawsuit the U.S. Supreme Court threw out for lack of standing. The Texas Supreme Court describes the commission as “an administrative agency of the judicial department of [the Texas state] government” and “an ‘aid’ to [its] powers ... to regulate the practice of law[.]” But in ruling on Webster’s appeal, that court held that the commission lacks authority to police the conduct of the attorney general (much less his assistant) outside of cases filed in Texas courts. Here again, a new carve-out was created that resulted in exempting government lawyers from ethical oversight—and thus, as a practical matter, from having to follow ethical rules at all. 

Perhaps more alarming, the Republican attorneys general of 18 other states filed an amicus brief in the Webster case arguing that, because they were each directly elected, no person or entity, including the highest courts of their respective states, has any power to discipline them for ethical violations—the only remedy anyone has is for voters to turn them out of office at the next election (assuming they run).

The List Goes On 

Even Democratic states are proving squeamish about holding high-ranking Trump lawyers accountable to their ethical obligations. Last May, the New York Attorney Grievance Committee referred a complaint about then-Associate Deputy Attorney General Emil Bove to the Justice Department’s diminished Office of Professional Responsibility; the Virginia State Bar recently ducked a complaint against Lindsey Halligan (the would-be U.S. attorney for the Eastern District of Virginia); and earlier this month the Attorney Grievance Commission of Maryland declined to investigate Federal Communications Commission (FCC) Chairman Brendan Carr.

Bondi, Clark, Bove, Halligan, and Carr are just the longest poles in a tent that is full of government lawyers whose ethical misconduct is unprecedented. Federal judges are increasingly scolding Justice Department lawyers for filing “sham,” “fabricated,” and “self-serving” submissions; “wasting judicial resources”; “thumbing their nose” at courts; and “willful[ly]” and “utterly” disregarding their orders. As Justice Jackson noted: “[T]he citizen’s safety lies in the prosecutor who ... seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.” Trump administration prosecutors are certainly not going to behave that way without relentless ethical scrutiny.

Some scholars argue that the responsibilities of high-ranking government officials are too vital to be constrained by the ethics disciplinary process; that we should “minimize interference by the judiciary with the high-ranking legal officer’s work.” But there’s no shortage of people to take their places, especially on an acting basis, as we’re seeing across the Justice Department. More importantly, it would be perverse to hold that the lawyers who have the most influence in our system of government warrant the least amount of ethical oversight. In words that have particular applicability today, the D.C. Court of Appeals in 1988 declared:

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law .... Lawyers, as guardians of the law, play a vital role in the preservation of society .... A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

Defenders of federal and state government lawyers accused of ethical misconduct also dismiss the complainants as engaging in “lawfare” by “weaponizing” state rules of professional conduct because they are unable to succeed at the ballot box. But in a world where ethics is just politics by another means, lawyers are no different from anyone else—except maybe less regulated. In that world, the rule of law is further reduced to yet another setting in which might makes right. But lawyers are supposed to be different from other professionals, held to different standards by virtue of the nature of their work.

State courts and state bars have a momentous responsibility right now to step up and investigate lawyers who act as though neither the law nor professional ethics rules apply to them. We should all pay attention and make clear that we expect government lawyers to remember their legal and ethical obligations to the public—and speak up when state disciplinary authorities fail to hold such lawyers in check.