For presidents, broadly speaking, lying is not against the law. For lawyers pursuing a president’s agenda, however, it’s a very different story.
Like all other lawyers licensed to practice in the United States, if they violate legal ethics rules, they can face sanctions in court or professional discipline, up to and including the permanent loss of their license to practice. Efforts to overturn the 2020 election foundered in court more than 60 times, before judges of both parties, in part because lawyers arguing President Trump’s case often feared telling a court the same extravagant lies that the president was telling the American people.
That was then. Now, under pressure to ignore a range of ethics rules, a large number of Department of Justice attorneys have quit, opting to lose their jobs but save their careers. Between these departures and a purge of legal staff members seen as insufficiently loyal to the president’s agenda, the department has lost thousands of lawyers. It shows: Briefs are riddled with errors. Attorneys come to court grossly unprepared. Worst, court orders stand violated — in some cases, it seems, because there weren’t enough lawyers available to ensure they were carried out.
To fill those empty seats, the department has launched an increasingly desperate effort to recruit new hires. (“Don’t be scared off by the transcript requirement,” a conservative law school reportedly told its students. “G.P.A. is not a strong factor.”) Even so, it seems too few lawyers are willing to take the chance. So the Trump administration last week offered up a different solution: a proposed rule that aims to shield Department of Justice lawyers from independent ethics investigations.
Such an arrangement would run afoul of a federal law known as the McDade Amendment, which says that government lawyers are subject to the ethics rules of the states in which they practice, “to the same extent and in the same manner” as every other lawyer licensed in the state. The proposed rule would be challenged in court immediately if it were ever to take effect. It shouldn’t get that far, however. It would do much more than potentially give department lawyers a free pass to lie on the president’s behalf. It would severely limit the courts’ ability to offer any kind of independent check on the executive branch.
Rules requiring lawyers to serve as honest officers of the court have been adopted by every state and the District of Columbia. They serve a host of purposes, starting with the basic right to fairness. These rules are also critical to the independence of the courts, which depend on access to reliable evidence and accurate representations by counsel.
Such rules serve an especially critical function in constitutional democracies, which distinguish themselves from authoritarian regimes in part by insisting that truth and falsehood exist separately from whatever the government may assert. Facts, no less than law, constrain government power. Against the “flood the zone” strategy of misinformation that the current administration seems to favor, lawyers and judges, bound by legal, professional and social obligations to work in a reality-based world, can function as a critical levee.
The Trump administration lawyers who remain have spent the past year testing this levee, amassing a staggering record of false sworn statements, withheld information, contradictory testimony and more. Judges appointed by presidents of both parties have repeatedly called out Justice Department lawyers for their failures, excoriating attorneys for wasting judicial resources in some cases, threatening lawyers with sanctions in others. So damaged is the department’s reputation for truth-telling at this point, one judge noted despairingly, that “the court is left with little confidence” that government lawyers “can be trusted to tell the truth about anything.”
Under the proposed rule, the attorney general could ask any independent disciplinary authority to suspend ethics proceedings against a Justice Department lawyer (on threat of unspecified enforcement action), and send the matter to the department’s own Office of Professional Responsibility. But an O.P.R. review is not a serious substitute for a state bar investigation. Even before Mr. Trump, the office, which answers to a political appointee, had a reputation of operating like a black hole, with the details of investigative findings almost never made public.
The O.P.R. came into being as a compromise measure, designed to stave off calls for more radical reforms at the Justice Department when it became clear how many of its lawyers had aided Richard Nixon’s corruption. It has never had the power to subpoena testimony or information from outside the department. At the moment, it doesn’t even have a leader. That leaves it up to Deputy Attorney General Todd Blanche — who recently declared that the administration was at “war” with the federal courts — to move any internal evaluation along as fast, or as slowly, as he wants.
The state bar disciplinary system is far from perfect. Proceedings can drag on for years. Some bar authorities are reluctant to investigate Trump administration lawyers. Even disciplinary systems with the courage to move forward could have a tough time handling the sheer number of administration lawyers who have apparently lied. Still, coupled with other deterrents — the courts themselves, and lawyers’ concern for their own reputations — the risk of state bar discipline remains a critical tool for protecting the truth-finding function of the federal courts. No wonder the administration is determined to go after them.
The move against state bars is of a piece with the administration’s broader strategy against universities, the media, law firms — any set of organizations capable of challenging the president’s power. And few things threaten it more than holding it to the truth.
Deborah Pearlstein is the director of the Princeton Program in Law and Public Policy and a visiting professor of law at the Princeton University School of Public and International Affairs.
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