US Department of Justice Seeks to Exempt Its Attorneys from the Law

The US government, in an effort to restrict the ability of federal courts to oversee its actions, is trying to loosen ethical controls on Department of Justice (DOJ) attorneys. This initiative would allow attorneys to evade accountability and achieve the administration's political goals. Courts must be able to rely on the statements of the lawyers who appear before them, as these are subject to strict ethical standards that ensure the accuracy of the information presented to judges and the integrity of the judicial process.

Many federal courts have observed that DOJ attorneys have provided incomplete or misleading information on matters of great importance. This includes the whereabouts of individuals in the custody of Immigration and Customs Enforcement, or the reasons why court orders to release those persons were ignored. A federal judge in Minnesota even accused the government of repeatedly offering excuses for its "oversights and disobedience of court orders".

Instead of requiring greater accountability from its attorneys, the DOJ proposes to weaken existing controls, becoming the judge of whether misconduct has occurred. The proposal, which has raised alarm, would allow the department to indefinitely interrupt state disciplinary investigations by directing an internal "review" of allegations against its own attorneys. Furthermore, the rule states that if the state disciplinary authority refuses to halt its investigation, the department will take action to prevent them from interfering with the Attorney General's review.

This proposal contradicts a law from almost 30 years ago, 28 U.S.C. § 530B, which states that the department's attorneys are subject to the same state ethical requirements as other licensed attorneys. The DOJ's proposal is flawed because it gives the power of review to the department itself, excluding the independent check that state disciplinary proceedings currently provide.

The DOJ's proposal is an attempt to displace established authority, allowing the department to suspend or override state disciplinary processes, which violates the fundamental principles of federalism. The government argues that some state authorities have not cooperated with the department's internal ethics investigations, but does not provide specific examples. There are legitimate reasons, such as the risk of destruction of evidence or coercion of witnesses, for state authorities to keep an investigation confidential, at least in its early stages.

The regulation of the legal profession has been left exclusively to the states and the District of Columbia since the founding of the nation, a system recognized by the US Supreme Court in its 1979 opinion in Leis v. Flynt. The department's proposal, however, would alter this established allocation of authority.

The DOJ's proposal is considered legally and politically wrong, given the current administration's tendency to challenge the boundaries of the law. It is crucial to hold the department's attorneys to the same high ethical standards that all other attorneys must meet. The DOJ's proposal, if approved, would allow the department, which is the employer of the attorney under investigation, to say "hold off, we will handle this in-house".

Mark Recktenwald, former Chief Justice of the Hawaii Supreme Court and former Assistant US Attorney for the District of Hawaii, is a member of Keep Our Republic's Alliance of Former Chief Justices, which advocates for the rule of law. He, along with other legal experts, believes the proposal should be withdrawn immediately.