The Justice Department has proposed a rule that would allow the attorney general to review and potentially delay state bar investigations into federal prosecutors, a move critics say could weaken one of the last independent checks on government lawyers. The proposal, which the DOJ says is necessary to address politically motivated complaints against department attorneys, has drawn pushback from legal ethics experts, Democratic state attorneys general, and the American Bar Association.
Under current law, federal prosecutors can face investigations by state bar associations that license and discipline all attorneys in a given jurisdiction. State bars have filed ethics complaints against several DOJ officials in recent years, including former Attorney General Pam Bondi over allegations she pressured department lawyers to act unethically, and pardon attorney Ed Martin over claims he violated ethics rules, including his oath of office. The proposed change would give the attorney general authority to conduct an initial review of such complaints before state investigations proceed.
What the Right Is Saying
DOJ officials say the rule is necessary because political activists have weaponized the bar complaint process against government lawyers. In its proposed rule, the department wrote that "over the past several years, political activists have weaponized the bar complaint and investigation process," arguing this creates a chilling effect on zealous advocacy for the United States.
America First Legal, a conservative group founded by White House Deputy Chief of Staff Stephen Miller, urged DOJ to go further and give itself exclusive authority over ethics complaints. "Political activists have weaponized the bar complaint process to chill zealous advocacy by current and former federal government attorneys," the group wrote in public comments.
A group of 14 Republican state attorneys general voiced support for the proposal in their comment letter. They argued the rule offers a more uniform approach to attorney ethics while still balancing states' interests. "We're deeply concerned about how politically motivated people or groups might try to influence the DOJ's advocacy by threatening bar complaints," they wrote, echoing the department's reasoning.
The DOJ cited recent complaints against senior officials including Bondi and Martin as evidence of the problem the rule aims to address.
What the Left Is Saying
Democratic attorneys general and legal accountability advocates say the rule represents a sweeping shift that would shield federal prosecutors from independent oversight. A coalition of mostly Democratic state AGs warned in public comments that the proposal erodes long-standing state authority over attorney discipline, violating basic principles of federalism. The American Bar Association raised similar concerns about the implications for professional accountability.
Michael Frisch, ethics counsel at Georgetown University Law Center, described the effort as part of "a broad attack on the rule of law and on the concept that lawyers should be ethically accountable for their actions." He argued existing systems are designed to handle politicization concerns. "It's an unfortunate byproduct of the times we live in that everything seems politicized," Frisch said.
Matthew Cavedon, director of the Cato Institute's Project on Criminal Justice, submitted comments arguing the proposed rule would make accountability problems worse. "Federal prosecutors are some of the most powerful people in the country, and they are among the least accountable," he told NPR. He noted that criminal charges against prosecutors for misconduct are exceedingly rare.
Chris Swartz, senior ethics counsel at Democracy Defenders Fund, said the DOJ proposal reflects a pattern of efforts to "degrade, destroy and remove safeguards that are intended to be independent checks on abuses of power."
What the Numbers Show
The proposed rule invokes a 1998 federal law called the McDade-Murtha Amendment, which requires federal prosecutors to follow state and local ethics rules in the states where they work. Legal experts, including Professor Susan Carle of American University Washington College of Law, say the DOJ proposal would clearly violate this amendment and could face legal challenge.
Under current regulations, the DOJ's Office of Professional Responsibility serves as the attorney general's designee for reviewing bar complaints internally. Critics point out that in the first weeks of the Trump administration's return to the White House, the president removed the head of OPR along with the director of the U.S. Office of Government Ethics and at least 17 independent inspectors general across federal agencies.
State bar complaints against DOJ officials have increased in recent years amid heightened political tensions over government attorneys' conduct related to election challenges and other contentious matters.
The Bottom Line
The proposed rule remains under review during Acting Attorney General Todd Blanche's tenure. Legal observers expect the department to continue pursuing finalization despite anticipated legal challenges. Critics warn that allowing federal prosecutors to operate with reduced external accountability could have far-reaching implications for the integrity of federal prosecutions. Supporters contend the change is necessary to protect government attorneys from politically motivated harassment. The outcome will likely be decided in federal court if the rule is finalized and challenged, with McDade-Murtha's requirements serving as a central point of contention.