The Justice Department’s Bid to Avoid Accountability

During her tenure as attorney general, Pam Bondi proposed a regulation that would require state disciplinary authorities to delay investigations and proceedings against federal government lawyers until the Department of Justice has conducted its own inquiry. While the new regulation is a misguided and likely unenforceable effort to insulate government lawyers from discipline, it also exposes real faults in the current regulatory system.

The Background of the Recent Regulation

Early in President Trump’s second term, Ed Martin, a Republican attorney whose claim to fame was defending Jan. 6, 2021, rioters, took a brief turn as interim U.S. attorney for the District of Columbia. Martin, like so many of Trump’s hand-picked prosecutors, lacked experience in the Justice Department or any other prosecutors’ office. In March and April 2025, while serving in that position, Martin sent a succession of letters to the dean of Georgetown University’s law school and to other Georgetown officials, threatening the university’s not-for-profit status and its receipt of federal funding unless the law school stopped teaching and promoting “DEI” or “diversity, equity, and inclusion.” Martin insisted that his office would not hire the law school’s students or graduates until it relented. This correspondence was among the embarrassments that forced the administration to withdraw Martin’s nomination and to award him, as a consolation prize, an administrative position in the Department of Justice not requiring senatorial approval. 

Whatever one thinks of DEI or the ideological basis of such programs, Martin’s threats likely violated Georgetown’s First Amendment right to free speech. The ordinary legal response would be for the university to take the government to court, as so many institutions have done during President Trump’s second term in office. But, in Martin’s case, because he is not only a federal official but also a lawyer, there was another possible response—a disciplinary proceeding.

As a lawyer admitted to practice law in the District of Columbia, Martin is subject to professional discipline, including disbarment, for violating rules of professional conduct adopted by the D.C. Court of Appeals. That court, which has legal authority to both license and discipline D.C. lawyers, has delegated these responsibilities to the D.C. Bar, subject to the courts’ oversight. When Martin’s first letter to the Georgetown law dean became public, a retired judge complained to the D.C. Bar’s Disciplinary Counsel, who in turn directed Martin to respond. Instead, Martin went over the Disciplinary Counsel’s head to the judges of the D.C. Court of Appeals, importuning them to meet with him, to dismiss the disciplinary case, and to suspend and investigate the Disciplinary Counsel. Unmoved, the chief judge wrote back telling Martin to go through the ordinary procedure in disciplinary matters.

The Disciplinary Counsel began looking into the matter, and a year later, he filed two formal disciplinary charges against Martin. The first accuses Martin of violating his oath to uphold the U.S. Constitution. The second charges him with communicating with judges ex parte—that is, without the opposing side present—and with seriously interfering with the administration of justice.

Ordinarily, what comes next is a formal hearing, and either side that dislikes the outcome can then appeal to the D.C. Court of Appeals. Martin has adopted a different approach. He responded to the charges with a 25-page answer raising 40 defenses, the principal theme being that the D.C. Bar had no authority to regulate his conduct as a lawyer because he was working for the president. In an unusual move, Martin also filed an action in the D.C. federal district court, asking it to take the matter over from the D.C. disciplinary authority on the ground that he was entitled to raise his constitutional and statutory defense directly in that court. Jeffrey Clark, a Department of Justice lawyer who was recommended for discipline for his role in seeking to overturn the 2020 presidential election results, similarly tried to move his case to federal court, and failed.

These two lawyers are not alone in trying to short-circuit the state disciplinary process. The Department of Justice fears leaving its lawyers to the mercy of courts’ disciplinary processes. And attorney discipline is especially anathema to the current Justice Department administration, in which so many top officials, including Acting Attorney General Todd Blanche, have been targeted by not-for-profit organizations asking disciplinary authorities to launch inquiries, and so many subordinate lawyers have been criticized by federal judges for lack of candor, violating court orders, and other professional conduct that could eventually precipitate disciplinary investigations.

Shortly before the charges against Martin became public, the Justice Department proposed the new regulation. It directs the Justice Department, on learning of allegations of misconduct by current or former Justice Department lawyers, to ask state courts’ disciplinary authorities to delay responding until the department’s Office of Professional Responsibility (OPR) completes its own review. If a disciplinary authority refuses to defer to the Justice Department’s request, the department would take unspecified “appropriate action.” Employing federal rule-making procedure, the Justice Department invited the public to comment on the proposed rule before deciding whether to adopt it, and hundreds of thousands of naysayers responded.

History of Justice Department Battles With Attorney Regulators

One might view the proposed rule as a wholly unprecedented attempt by the Justice Department to insulate its lawyers from accountability for professional misconduct, since the Justice Department can delay its investigation indefinitely and, if it exonerates its lawyers, pressure the disciplinary authorities to defer to its findings. But the proposal is far from unprecedented. The truth is that the Justice Department, under both Democratic and Republican administrations, has repeatedly tried to chip away at disciplinary authorities’ influence over its lawyers’ work, with varying degrees of merit and success. The department’s efforts to restrict state and federal regulators’ oversight sheds light on the dysfunctional system of federal government lawyer regulation.

For almost a half century, the Justice Department has sought to narrow state courts’ authority to adopt rules regulating prosecutors’ conduct or restrict their ability to apply those rules to federal prosecutors, even after the rules were adopted by the federal courts in which those prosecutors worked. The earliest, and still most notable, example was the Justice Department’s crusade, for more than a decade, against the “no-contact rule.” This is a professional conduct rule that all state courts have adopted based on the American Bar Association (ABA) model. It forbids lawyers from communicating directly with other parties who are represented in the matter rather than dealing with those parties’ lawyers. In the late 1970s, criminal defense lawyers began arguing that this rule forbids prosecutors from dispatching investigative agents and informants to extract statements from their clients, even when those individuals had not yet been charged with a crime. When some courts proved sympathetic to this argument, the Justice Department took the position that its lawyers were exempt from the rule and subject only to its own self-imposed restrictions and constitutional restraints.

The Justice Department articulated this position first in an internal memo of its Office of Legal Counsel, then in a public statement known as the Thornburgh Memorandum issued by the first President Bush’s attorney general, and finally in a rule adopted by Janet Reno, President Clinton’s attorney general, through the same rule-making process now being employed by the Justice Department.

Neither the Thornburgh Memorandum nor the Reno Rule received a warm response by the federal courts. That is because the federal courts place their own imprimatur on the professional conduct rules adopted by state courts and use those rules to regulate lawyers, including federal prosecutors, who appear in federal court. The Justice Department’s memo and rule would have restricted not only state disciplinary authorities from sanctioning government lawyers who violate the no-contact rule but also federal courts. A federal court of appeals held that the Reno Rule was ineffective, because it violated federal courts’ authority to regulate the bar.

Congress then nullified the Reno Rule before this question of its effectiveness came before the Supreme Court. Shortly before leaving office after being unsuccessfully prosecuted in federal court, Rep. Joseph McDade (R-Pa.) added a rider to a spending bill that was then signed into law. The so-called McDade Amendment says simply: “An attorney for the Government shall be subject to State laws and rules, and local Federal court 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.” In other words, the Justice Department may not exempt its lawyers from the professional conduct rules that apply to other lawyers in their situation.

With the downfall of the Reno Rule, the department pursued other approaches, including resorting to litigation challenges. For example, in the 1980s, federal prosecutors grew increasingly aggressive in subpoenaing lawyers, which raised concerns about potentially troubling intrusions into the attorney-client relationship. The Justice Department adopted its own approval rules for prosecutors who wanted to subpoena lawyers, but the ABA was more absolute in its professional conduct rule, which prevented prosecutors from subpoenaing a lawyer unless the evidence was essential to an investigation and there were no feasible alternative way to obtain it. When Massachusetts adopted a version of the rule, Donald Stern, the U.S. attorney for Massachusetts, took the bar to court, arguing that the rule was unconstitutional as applied to federal grand jury proceedings. The U.S. Court of Appeals for the First Circuit agreed, holding that the rule interfered with the independence of the federal grand jury.

The Justice Department has also sought to use its clout, or persuasive power, to discourage state courts from incorporating some of the ABA’s model rules into the state courts’ professional conduct codes. In 2008, the ABA adopted two model provisions directed at the problem of wrongful convictions. The rules would require prosecutors to investigate significant new evidence indicating that they had convicted an innocent person, and to rectify wrongful convictions when the new evidence clearly and convincingly established the convicted defendant’s innocence. Although the Justice Department does not contest the basic principle, it has steadfastly opposed state courts’ adoption of these rules, largely to deprive state disciplinary authorities of another mechanism to review federal prosecutors’ conduct. Although around half the state courts have adopted some version of one or both rules, the Justice Department has dissuaded other state courts from doing so.

The department’s historic hostility to disciplinary regulation of its lawyers is not entirely surprising: Every government institution—and, indeed, every institution of the legal profession—values its autonomy. No one wants others to tell them what to do or to look over their shoulder. And beneath the Justice Department’s reflexive opposition lie some legitimate concerns that regulators lack the requisite expertise, are captive of the defense bar, will intrude into confidential investigations, or are otherwise poorly situated to shape federal criminal practice. But that just raises questions about how to strike the right balance. Even the Justice Department does not contend that courts should exempt its lawyers’ conduct from professional conduct rules or regulatory oversight.

Who Should Regulate Federal Government Lawyers?

Most of the time, federal prosecutors who are suspected of professional misconduct could be punished by three different institutions. First, federal courts can hold lawyers who appear before them in contempt of court, impose monetary or other sanctions, or revoke the lawyers’ authority to appear in future proceedings. Second, state courts and their disciplinary arms can disbar or suspend lawyers, including federal prosecutors, who are licensed to practice law in the state. And third, the Justice Department can sanction its current lawyers by suspending or terminating their employment.

The Justice Department’s proposed rule raises the question of whether some of these institutions should defer to others and, if so, which institution should take the lead when a federal government lawyer is accused of professional misconduct. At present, there are no formal understandings. Critics have often complained that there is a dearth of discipline for federal attorney misconduct: When it comes to federal government lawyers, too many regulators leads to very little actual discipline.

We draw three lessons from the past infighting between regulators and the resulting lack of accountability. First, state courts should be cautious about taking the lead, when there are better alternatives, because there are legitimate practical and Supremacy Clause concerns when they get involved. As the First Circuit noted, regulating federal prosecutors’ conduct can end up shaping federal criminal law enforcement, a role that is inappropriate for state regulatory authorities. Second, the Justice Department has never been particularly good at regulating itself and therefore should rarely take the lead in investigating allegations of serious misconduct, especially of top officials. And third, while there is no ideal regulator, federal courts are in the best position to take up the mantle when, as is usually the case, the government lawyer’s alleged misconduct occurred in a federal court proceeding. In that event, the federal court presiding over the case will be familiar with the facts underlying the disciplinary allegations and will have expertise and experience regarding the federal criminal context in which the lawyer’s conduct occurred. Federal courts have sufficient resources to conduct investigations and disciplinary proceedings when possible misconduct occurs in their courts, they have an interest in protecting the integrity of their proceedings, and they can bring consistency to the regulation of federal government lawyers.

There has always been a tension for government lawyers between independence and accountability. The academic consensus is that although the landscape has improved, government lawyers on both the federal and state levels have historically been underregulated. Some of the “accountability gap” is an inevitable result of prosecutorial discretion, a necessary side effect of any effort to regulate fiduciaries, including prosecutors, who are granted broad discretion to capture their expertise. Critics raise valid objections when political actors seek to regulate government lawyers. For example, when Florida Gov. Ron DeSantis suspended an elected state prosecutor, Andrew Warren, for allegedly planning to abuse prosecutorial discretion, many observers were legitimately concerned that this was simply a way for DeSantis to enforce his political agenda. But the difficulty in holding government lawyers accountable without ensuring their capture by powerful politicians should not mean that we throw up our hands.

The Justice Department does not have a strong legal claim that state disciplinary authorities should defer to its Office of Professional Responsibility. If a state disciplinary authority ignores the department’s request that it await an internal regulator’s findings, it is unlikely that a court would stop the state disciplinary authority from plowing ahead with its proceedings. Some observers have pointed to language in the McDade Amendment that appears to presuppose that federal prosecutors are subject not only to state courts’ rules of professional conduct but also to the state courts’ disciplinary processes for enforcing those rules. But even aside from congressional authorization, state courts almost certainly have authority to revoke the law licenses they have awarded if, after a fair process, they find that a lawyer engaged in misconduct.

The Supreme Court has recognized that the authority to license and discipline lawyers is reserved to the states, which vest that authority in the state courts. A disbarred lawyer could theoretically continue to practice in federal court because states lack the authority to dictate how the Justice Department and federal courts work. By the same token, the Justice Department cannot dictate how state courts and their disciplinary arms regulate the admission and discipline of lawyers licensed by the state.

While it seems clear that federal courts, state courts, and the Justice Department itself can all rightly claim authority to regulate federal government lawyers through different processes, the harder question is who should take the lead in any given situation as a matter of sound regulatory policy. This is a question of “institutional choice”—that is, a question of which of various institutions is best qualified to perform this work. There are at least four possible answers to this question.

1. Should federal courts, the Justice Department, and state regulators continue proceeding without any clear order?

This is more or less the current system. Of course, if prosecutorial misconduct appears to occur in a federal court proceeding, the federal judge will have the first opportunity to address it. The judge can sometimes impose a sanction on the spot, schedule a hearing regarding whether a sanction can be imposed, or, in at least some federal districts, refer the matter to the federal district court’s formal disciplinary process. But federal judges are free to ignore possible wrongdoing or to ask OPR or the state disciplinary authority to look into it. For their part, neither OPR nor the state disciplinary authorities need a referral to start an inquiry, and they can both proceed at the same time, creating potential inefficiencies and complexities, or not proceed at all. Most often, the answer is, not at all.

2. Should the Justice Department take the lead?

The department’s proposed rule would give it the first look at government lawyers’ alleged misconduct while state courts wait on the sidelines. The proposal might initially seem unsustainable. One would not think for a minute that when a lawyer in a private law firm is suspected of misconduct, disciplinary authorities should delay their investigations until the law firm completes its investigation. Of course, the institutions in which private lawyers work have an oversight responsibility, but one would not give these institutions deference.  The same is true of the Justice Department, for several reasons. For one, it might slow-walk an investigation. For another, to protect its own reputation and the reputations of the lawyers for whom it has concern, the department has an incentive to defend its lawyers or to minimize its lawyers’ wrongdoing. For yet another, the state courts have a responsibility to the public to inquire expeditiously into alleged wrongdoing by the lawyers whom they license and they disserve the public by delaying.

To be sure, the Justice Department has a stronger claim than private law firms to be trusted to regulate its lawyers. It is not just a law office. It is an agency of the federal government that owes responsibilities to the public. Further, the Justice Department has reasons to be concerned that disciplinary inquiries will intrude on the confidentiality of legitimate investigations or prosecutions or otherwise impede its work. And notwithstanding state disciplinary authorities’ traditional deference to federal and state prosecutors alike, there is at least a theoretical possibility that some state disciplinary arms and state courts could lean in the other direction, employing vague or ambiguous rules of professional conduct to punish legitimate prosecutorial conduct. At the very least, prosecutors may be chilled from engaging in legitimate work out of fear of unfounded disciplinary proceedings. The Justice Department might even fear that disciplinary power could be politically weaponized. Even though state courts will not be obligated to accept OPR’s findings, a determination exonerating the prosecutor is likely to be given considerable weight and may discourage the state disciplinary authority from initiating its own inquiry altogether, thereby protecting prosecutors from disciplinary authorities’ misjudgments or overreaching.

The Justice Department’s claim to primacy has some abstract appeal but ultimately fails as a practical matter. The department has traditionally given in to the strong incentive to bury misconduct. That is unsurprising. In many cases, when allegations of misconduct first arise in federal court proceedings, the Justice Department defends its lawyers’ conduct, and once having done so, it can hardly be expected to review the conduct objectively. A look at OPR’s own public accounts of its work speaks volumes about its limited effectiveness, regardless of the presidential administration. In 2024, OPR closed a mere 17 investigations. In 2025, OPR posted 10 summaries of its investigations into alleged misconduct, most of it involving accusations of low-level misconduct, even though in the same year, federal judges expressed concern on hundreds of occasions that department lawyers had misled them, that the government was defying court orders (possibly with higher-ups’ complicity), or that other misconduct worthy of investigation appeared to have occurred.

This problem is compounded in the current political climate in which the Justice Department watchdogs are no longer independent and may have an even greater incentive to bury wrongdoing, protect the administration, and preserve the department’s ability to aggressively pursue its agenda through at least arguably illegal or unethical practice.

This is not to say that the Justice Department could never do a credible job of regulating its lawyers. As we have suggested elsewhere, this could be achieved if Congress assigned a more significant role to the Office of the Inspector General, which is more independent than OPR. But at present, the Justice Department’s disciplinary function is structured to ensure that high-ranking department officials are never investigated and that the subordinate lawyers most likely to be sanctioned are those who defy the department leadership, not those who implement its objectives.

3. Should state disciplinary arms take the lead?

State disciplinary authorities traditionally take the lead in overseeing lawyers in the United States. But their primacy can be problematic when it comes to federal government lawyers. The propriety of government lawyers’ professional conduct may turn on facts that are confidential. There are strong policy reasons for the federal government to want to control grand jury material, national security information, and other federal secrets. If the state courts’ investigation would expose such information, there would be strong prudential reasons why state regulators should defer to the Justice Department’s fact-finding process, at least if that process were considered reasonably reliable.

It may also be fair to consider the department’s views of how the applicable rules of professional conduct should apply to its lawyers, given the exigencies of federal investigations and prosecutions, federal courts’ expectations, and the traditions of federal prosecutors’ offices. To be sure, the Justice Department may weigh in even if state disciplinary authorities take the lead, and it often does. But insofar as the department is perceived as having relevant expertise, as well as a legitimate interest in minimizing the risk that state courts’ disciplinary processes will interfere with how federal prosecutors legitimately conduct their work, it may make sense for the department to garner and analyze the facts—at least if it can be trusted to proceed expeditiously and with integrity.

State disciplinary authorities might also have an interest in deferring to the Justice Department, at least initially, to conserve resources or to avoid becoming entangled in complex, highly charged political situations. State regulators are poorly situated to uncover complex facts. They often lack the resources to investigate and enforce rules when the facts are highly contested. Often the federal government lawyers are represented by sophisticated counsel with ample resources, and dealing with them will distract from state disciplinary authorities’ traditional work of protecting individual clients from harm. In addition, the application of vague and generally underenforced rules to highly charged political situations opens regulators up to the charge of weaponization. Whether or not with merit, these accusations take a toll on the rule of law and faith in legal institutions.

The strongest context for state regulatory bodies to take the lead is when a federal court has already made a finding of misconduct or if the lawyer has engaged in a clear violation of a rule that state courts traditionally and regularly enforce. If there are no issues of confidentiality and no factual questions that another actor is better qualified to resolve, then state courts may be the appropriate first responder.

4. Should federal courts be the primary regulator of federal government lawyers?

So who is left? Federal courts are generally in the best position to investigate federal government lawyer misconduct in the first instance. When the alleged misconduct occurs in, or has an impact on, a case over which the federal judge is presiding, the judge will already have knowledge of the factual context in which the conduct occurred and has authority to conduct an inquiry without initiating an entirely new proceeding. Federal judges have supervisory authority over the lawyers, including government lawyers, who are involved in the cases before them. Federal judges largely lack the bias of the Justice Department, and especially in high-profile cases, the courts are least susceptible to claims that they have been improperly politicized.

Federal judges have often been reluctant to take up this role for a host of reasons, as previously noted, including that they have crowded dockets. Further, federal judges traditionally assume the best of the federal prosecutors who work in their courts. But rather than ignoring possible misconduct or pawning the problem off on another institution, federal judges should ordinarily take the first stab at addressing government lawyers’ misconduct. State disciplinary authorities can then decide whether to defer to the court’s factfinding and, if the court found that misconduct occurred and imposes a sanction, whether that sanction adequately addresses the public interest or whether state discipline may also be warranted.

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The Justice Department’s proposed rule is poorly justified and almost certainly pretextual. The underlying motivation likely has little to do with the department’s traditional concerns about state courts’ disciplinary authority over federal government lawyers. But this is nonetheless the latest in a long and unresolved battle about who gets to regulate federal government lawyers.

Rather than respond with simple contempt to what seems like a bald attempt to insulate Justice Department lawyers from judicial and disciplinary supervision, one might use this as an occasion to think more deeply about the underlying policy question: Which institution, between federal courts, state court disciplinary authorities, and the Justice Department, ought to generally take the lead in overseeing alleged misconduct by federal government lawyers? In our view, the answer is federal courts.

But Ed Martin’s case, which is likely part of the impetus for the Justice Department’s proposed rule, is one of the exceptional ones where it makes sense for the disciplinary authority—in this case, the D.C. Bar—to take the lead, as it is doing. There would be virtually no conceivable reason for the disciplinary authority to delay the proceedings until OPR conducts and completes an investigation, assuming OPR ever undertakes one. The facts are largely uncontestable and well documented, in that Martin’s alleged offense consists of his now-public correspondence with Georgetown officials and D.C. judges. Inquiring into Martin’s conduct will have no impact on ongoing federal investigations or proceedings and has no implications for how the department legitimately conducts future ones. And if OPR could ever be trusted to proceed objectively, it would not be in a case involving a high-ranking Justice Department official such as Martin.

Nor was Martin appearing before a federal judge to whom the D.C. Bar might defer. Martin’s conduct was not connected to a federal trial. Although one huge underlying question is whether Martin’s correspondence with Georgetown violated the First Amendment, Georgetown declined to challenge Martin’s conduct in a federal court proceeding, and so the constitutionality of Martin’s threats was not at issue in a court proceeding to which the D.C. Bar might defer before conducting its own inquiry. And since the D.C. Bar is the disciplinary arm of the D.C. court with which Martin initiated the allegedly improper ex parte communications, it makes sense for the D.C. judges to rely on the disciplinary authority to inquire into the propriety of Martin’s correspondence. There is no good reason for the D.C. Bar to accede to Martin’s efforts to move the proceedings to the federal district court, given that the D.C. Court of Appeals, which oversees the D.C. Bar, is equally capable of adjudicating constitutional questions and is subject to discretionary review by the U.S. Supreme Court.

In Martin’s case and others involving alleged wrongdoing by Justice Department lawyers, the department is free to ask the disciplinary authority to step aside until OPR initiates and completes an investigation. If the Justice Department proposed rule is adopted at the end of the notice and comment period, its requests may appear to have greater legal legitimacy, although not actual enforceable legal authority. Some disciplinary authorities might accede to the department’s requests out of courtesy, fear, or self-interest. But in Martin’s case, in particular, the D.C. Bar should not bow down.