Proposed DOJ Rule Sparks Debate Over Prosecutorial Oversight
The Justice Department has proposed a rule that would allow the attorney general to intervene in state bar investigations of federal prosecutors, potentially delaying or sidelining those probes. Critics argue the move undermines independent oversight and may violate the 1998 McDade-Murtha Amendment, which requires federal prosecutors to follow state ethics rules.
At issue: Whether the attorney general should have the power to review—and potentially block—state bar complaints against federal prosecutors.
Key Details
- The proposed rule would give the attorney general power to request a first review of bar complaints against current or former DOJ attorneys for actions taken while working for the agency.
- Justice Department officials say the rule is needed to address what they describe as a surge in politically motivated bar complaints targeting government lawyers.
- Critics, including legal ethics experts, state attorneys general, and judges, say the rule weakens state oversight and could face legal challenges.
Background
The McDade-Murtha Amendment, passed in 1998, requires federal prosecutors to comply with state and local ethics rules. Previous efforts by the Clinton and Bush administrations to exempt federal prosecutors from some state ethics rules were blocked by Congress.
Statements
Michael Frisch, ethics counsel at Georgetown University Law Center, called the move "part of a broad attack on the rule of law" and said it violates the McDade-Murtha Amendment.
The DOJ stated: "This unprecedented weaponization of the State bar complaint process risks chilling the zealous advocacy by Department attorneys on behalf of the United States..."
Supporters, including America First Legal and 14 Republican state attorneys general, argue the rule is needed to combat "lawfare" against DOJ attorneys.
Critics, including Democratic state attorneys general and the American Bar Association, warn the rule erodes state authority and violates federalism principles.
Matthew Cavedon of the Cato Institute said the current bar regulatory process is flawed, but the proposed rule would worsen oversight.
Relevant Cases
Case Outcome Former Attorney General Pam Bondi Faced a bar complaint in Florida over alleged pressure on DOJ attorneys; Florida Bar declined to investigate Pardon attorney Ed Martin Faces D.C. bar disciplinary proceedings over alleged ethics violations Attorney John Eastman Disbarred in California for efforts to overturn the 2020 election Rudy Giuliani Lost licenses in New York and D.C. for similar conduct Former DOJ attorney Jeffrey Clark Faces disbarment recommendation in D.C. for attempting to overturn election resultsRelated Actions
The Trump administration removed:
- The head of DOJ's Office of Professional Responsibility
- The director of the U.S. Office of Government Ethics
- At least 17 inspectors general
These actions have raised broader concerns about accountability within the federal government.
The DOJ has not responded to questions about its plans to finalize the rule.