Law licensing authorities provide the only avenue of accountability left for Trump administration lawyers lying to courts, disregarding court orders, or actively plotting coups. Trump will pardon his legal enablers for any crimes involved in, say, packing up innocent people and shipping them to El Salvador. His Federalist Society-approved appellate courts stand by to rob district courts of the inherent authority to police contempt. Trump v. United States may even eliminate whatever liability remains by allowing Trump lawyers to claim their ethical lapses constitute “official acts.” If you can use SEAL Team 6 to kill political opponents, you can definitely write a memo suggesting government lawyers tell federal judges to fuck themselves. All that remains is the individual lawyer’s license. It’s the privilege to practice, bestowed by jurisdictions with the caveat that lawyers must abide by the ethical rules of the profession.
Nothing can make Trump’s lawyers respect the law, but the local bar can keep an ethical reprobate from practicing law going forward and continuing to hold themselves out to the public as an ethically compliant counselor. They must be professionally sanctioned, if not disbarred.
Local authorities have mostly abdicated this responsibility so far, preferring not to get involved. But the mere threat that Trump lawyers may face professional consequences for their actions prompted the Department of Justice to concoct a new rule to strip local bars of their statutory authority to regulate the ethics of government lawyers. Now, the DOJ has brought a lawsuit against the D.C. Bar to intimidate and chill any licensing authority that might consider holding government lawyers to the same standard as the rest of us.
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The Justice Department filed a lawsuit Wednesday against the D.C. Office of Disciplinary Counsel, the D.C. Board on Professional Responsibility, the D.C. Court of Appeals, and the whole District itself — essentially any entity in the capital that might be in a position to take a lawyer’s license away — on the theory that the bar disciplinary process violates the Supremacy Clause and Article II when applied to former DOJ attorneys. The nominal hook is the ongoing disciplinary proceeding against Jeff Clark, the former Assistant Attorney General whose “Georgia Proof of Concept” letter remains one of the more lurid artifacts of the post-2020 effort to nullify an election.
But the lawsuit is really forward looking — a direct threat to any professional regulator that they should look the other way when they come across misconduct by government attorneys, if they know what’s good for them.
The complaint’s central legal theory is that disciplining a former federal official for misconduct committed during federal service “regulates” the Executive Branch in violation of the Supremacy Clause. As the DOJ puts it:
Weaponizing state bar discipline against Executive Branch attorneys in this way chills them from giving candid legal advice to others in the Executive Branch, including the President and Attorney General. To permit these proceedings is to allow state bar authorities to control the Executive Branch. That is not the law.
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It is, in fact, the law. The McDade-Murtha Amendment explicitly guarantees local bar authorities have jurisdiction over government lawyers committing misconduct in their borders. Beyond that, a license is not a right and a lawyer’s privilege to practice is always subject to staying within the rules of the profession.
Advice that violates ethical obligations is not legal advice. Just as “with all due respect” doesn’t bless you unloading whatever insults you have in mind, slapping the word “candid” doesn’t turn illegality into legal advice. The DOJ leans heavily on the framing that Clark’s Georgia letter was “pre-decisional and deliberative” — which is true in the sense that the letter was never sent because Clark’s bosses refused to go along with it. But the Board on Professional Responsibility didn’t recommend disbarment because Clark was spitballing. It recommended disbarment because, as the Board put it, the letter contained statements that Clark knew or should have known were false, made in service of an effort to use the Justice Department to manufacture a pretext for state legislatures to override election results and disenfranchise voters.
Summer associates can pitch their bosses on bad legal theories because they don’t know better. When DOJ officials roll in with “ok, hear me out, what if we tried… crime?” it’s not deliberative. D.C.’s authorities found Clark’s actions closer to the latter, and if any current DOJ leaders actually told their staff to violate court orders and lie to judges about it, they’ll end up on that side of the ledger too.
Where the violation itself involves lying to courts — as it will for scores of government attorneys before this is all over — it’s actually the antithesis of legal advice. If the Executive Branch wants lawyers to provide illegal advice, that’s on them. But the profession doesn’t have to let that lawyer go back to private practice as though nothing happened.
Indeed, after a lawyer has left government service it’s metaphysically impossible for a disciplinary counsel to “control” anything. Absent a time machine, local authorities can’t stop someone like Clark from drafting a letter proposing that the DOJ lie about fraud that didn’t exist in order to effectuate a coup. But if someone were to write that letter — purporting that it is legal advice — the bar is obligated to protect the public from that kind of lawyer practicing again. The only influence licensing authorities have is in indirectly incentivizing lawyers to give real legal advice. That the DOJ views requiring ethical legal advice as an undue burden on how the administration operates is not the flex they think it is.
You know a brief rests on dubious footing when it roars out of the gate citing cases from the 1800s. As the DOJ sees it, the state of Maryland wasn’t allowed to use state taxes to run the Bank of the United States out of business… ERGO government service is the Ross telling Rachel “we were on a break” of ethical obligations. If government lawyers aren’t bound by professional ethics, then they don’t really need to be lawyers. Just hire a business grad from Sales if you’re looking for a someone to sign off on illegal activity.
The complaint attempts to stretch the Trump v. United States rubber band past its breaking point to hang its “absolute immunity” over presidential crimes to the professional licensing decisions of a state bar. The Supreme Court’s love letter to Donald Trump grants presidents free rein to commit crime, and it may even allow government lawyers to avoid criminal repercussions for aiding and abetting presidents in those crimes. But it’s silent on how local jurisdictions hand out licenses. Character & Fitness doesn’t have to limit itself to what the criminal courts decide when considering admitting candidates, it doesn’t have to do it when deciding to keep them in practice.
The complaint also makes much of social-media posts by Jack Metzler, an Assistant Disciplinary Counsel who has, in his off-hours, posted accurate things about Sam Alito — which is to say deeply insulting. Fine. Metzler probably should be on the prosecution team, if only to avoid the appearance of impropriety. It might be grounds for Clark to personally push back on these charges. It is not, however, a justification for the DOJ to seek a perpetual invincibility star on every administration lawyer’s license.
If you have a law license, you have to follow the rules.
But again, this isn’t really about hauling Jeff Clark’s ass out of the fire. The DOJ wants every other jurisdiction receiving referrals from federal judges about DOJ lawyers lying to court to fear getting involved. Like the executive orders against Biglaw firms, the administration wants to make a example out of a few that nudges everyone else into obeying in advance. They don’t even need to succeed in this suit to scare off an underfunded regulator out there. It’s just a threat letter dressed up with case citations half-remembered from first-year Con Law.
The proper response to this threat is for disciplinary authorities to redouble their efforts. Especially if the referrals are being initiated by judges themselves. It’s the nature of government to be partisan, but that can’t become an excuse to close our eyes to misconduct out of fear that someone calls it “politicization.” Bar authorities exist to protect the public and preserve the honor of the profession, and that obligation doesn’t take a holiday because the lawyer involved collected a government paycheck. Surrendering self-regulatory authority forfeits the profession’s dignity.
That is what the DOJ is counting on.
(Check out the complaint on the next page…)
Earlier: Disbar Them All: The Only Accountability Left For Trump’s Lawyers
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.