On her first day in office, Attorney General Pam Bondi delivered a warning to Justice Department lawyers: Refusing to zealously advocate for the president’s position — no matter how unethical or contrary to law — was a firing offense.
A year later, morale has cratered and her agency is a hollowed out shell. The DOJ has been reduced to recruiting online, urging would-be prosecutors to hit up US Attorneys via DM. Turns out lawyers don’t love being marched into court with a gun in their backs and forced to light their credibility on fire!
The problem reached a crisis point this winter thanks to the Department of Homeland Security’s dogged insistence that its creative reinterpretations of settled law allow it to indefinitely detain any immigrant without a green card. Hundreds of judges have said they can’t, and yet district courts are still buckling under the weight of hundreds of identical habeas petitions. DHS routinely ignores court orders to release immigrants, or, when it does comply, dumps people on the street a thousand miles away from home without their identity documents.
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Unsurprisingly, judges are furious. Just this past week, courts in New Jersey, West Virginia, and Minnesota warned that they’re going to start holding DHS and prosecutors in contempt. And in California, Judge Sunshine Sykes was incensed by a leaked memo from Chief Immigration Judge Teresa Riley instructing immigration courts (which are part of DOJ) to disregard district court rulings.
Knowing that risking contempt is a job requirement won’t help Bondi recruit and retain staff. Nor will the inevitable bar complaints that quote judicial orders excoriating AUSAs for bringing frivolous cases and failing in their duty of candor to the court. So Bondi is running to where the ball is about to be.
In a proposed rule change flagged by Bloomberg Law, she floats a plan to take over state bar complaints against DOJ attorneys and “request that the bar disciplinary authority suspend any parallel investigations until the completion of the Department’s review.”
Bondi adds that, “should the relevant bar disciplinary authorities refuse the Attorney General’s request, the Department shall take appropriate action to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations.”
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The “appropriate action” would be nothing, but considering the number of garbage lawsuits her agency files, she probably means pointless litigation.
Fittingly, Bondi relies on a creative statutory reinterpretation of her own — a little hair of the dog, if you will.
Since it was passed in 1998, the McDade Amendment (28 USC § 530B) has subjected government attorneys to local ethical and professional standards “to the same extent and in the same manner as other attorneys in that State.” In fact, the law was enacted because Attorneys General Janet Reno and Dick Thornburgh kept trying to exempt DOJ lawyers from local rules.
Bondi’s theory is that the McDade Amendment only prescribes standards of conduct for government lawyers, but leaves enforcement to the Attorney General herself by instructing her to “make and amend rules of the Department of Justice to assure compliance with this section.” She also gestures vaguely in the direction of the Supremacy Clause, claiming that fear of “weaponized” bar complaints deters her staff from zealous advocacy and thus interferes with “the broad statutory authority of the Attorney General to manage and supervise Department attorneys.”
The problem is that all of that is bullshit.
In 1979, the Supreme Court said that Larry Flynt’s lawyers had no right to be admitted in Ohio pro hac vice because, “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.”
Jeff Clark, the MAGA goon serving as acting head of the Civil Division in 2020, tried to escape discipline by the DC Bar on the exact same theory that Bondi is floating now (plus several other even nuttier ones), and got laughed out of the DC Circuit.
Bondi’s fakakta claims don’t even make sense on their own terms, since the AG has zero power to impose professional discipline after an investigation — or “investigation,” since Bondi gutted the Office of Professional Responsibility and the White House defunded the Inspectors General. She can fire a lawyer for misconduct, or maybe go after his pension, but she can’t suspend him from the practice of law.
As for her whining about weaponized attorney grievance proceedings, that, too, is nonsense. State bars have handled Trumpland lawyers with kid gloves, refusing to discipline Alina Habba and Lindsey Halligan after they falsely held themselves out as US Attorneys for months after courts had already ruled they were nothing of the kind. And Bondi herself, as well as her Principal Deputy Todd Blanche, shrugged off bar complaints in Florida and New York.
The proposed rule change will get 30 days for comment, and perhaps the negative publicity will lead the DOJ to withdraw it. But even it becomes official policy, this rule is effectively a nullity. Supreme Court precedent, settled law, and the Tenth Amendment will protect state bars when they tell the AG that they’ll be conducting their own disciplinary investigations, TYVM. But there is something Bondi could do to protect DOJ lawyers from professional discipline.
If she cared about keeping her staff out of trouble, she could just quit asking them to do wildly unethical stuff. It would be a twofer, saving them from contempt sanctions as well as possible disbarment. Plus it would probably help a lot with retention and morale!
I’m kidding — we all know she’s not going to do that.
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
