The Justice Department has proposed a rule that would allow the attorney general to step in and potentially delay state bar investigations of current and former federal prosecutors, prompting widespread concern from state officials, former prosecutors, ethics experts and judges.
Under the current system, federal prosecutors are subject to state bar regulation, which licenses and disciplines attorneys. The proposed rule would permit the attorney general to request an initial review of complaints alleging misconduct by department attorneys for actions taken while working at DOJ. The department says the change is needed to address a recent surge in politically motivated bar complaints aimed at chilling its lawyers’ advocacy.
In its proposal, DOJ argued that “political activists have weaponized the bar complaint and investigation process,” pointing to recent complaints against senior officials — including former Attorney General Pam Bondi and Ed Martin, the White House pardon attorney — as examples of what it called targeted efforts to interfere with department advocacy. The department said the rule flows from a January executive order about correcting “weaponization of law enforcement.”
Critics say the rule would undermine one of the last independent checks on government lawyers. Michael Frisch, ethics counsel at Georgetown University Law Center, called the proposal “part of a broad attack on the rule of law” and warned it threatens lawyers’ ethical accountability. He also said the rule would violate the McDade-Murtha Amendment, a 1998 law that requires federal prosecutors to follow state and local professional responsibility rules where they practice, meaning the final rule could face legal challenges.
Tension between DOJ and state bar regulators has history. Past administrations pursued policies limiting state regulation of federal prosecutors, including the Clinton-era “Reno Rule,” but Congress ultimately stepped in in the 1990s to clarify states’ authority, culminating in the McDade-Murtha provision. Susan Carle, a law professor at American University, said the new DOJ effort “clearly violates” that amendment and federal law.
Recent high-profile discipline actions and complaints have intensified the debate. Attorneys who aided efforts to overturn the 2020 election — such as John Eastman and Rudy Giuliani — have faced disbarments or license suspensions. Jeffrey Clark, a former senior DOJ official accused of dishonesty related to post-2020 actions, has faced a D.C. disciplinary appeals board recommendation for disbarment, which the department is contesting.
Since President Trump’s return to the White House, several DOJ officials have faced disciplinary scrutiny. Ed Martin has tried to move his disciplinary case from the D.C. Bar to federal court. Lawyers Defending American Democracy, a coalition formed after 2020, has filed multiple ethics complaints against DOJ officials, including a complaint against Pam Bondi alleging she pressured department lawyers to act unethically; the Florida Bar declined to investigate and Bondi remains in good standing in Florida, though Trump removed her from the attorney general role on April 2.
The group also filed a complaint with the D.C. Bar against Drew Ensign, who leads DOJ’s Office of Immigration Litigation, alleging he misled courts, disobeyed orders and failed to address misconduct by attorneys under his supervision. A D.C. judge, James Boasberg, had separately investigated whether Ensign and others were in contempt in an immigration case before an appeals court curtailed that inquiry. The D.C. Bar has not yet indicated whether it will pursue the Ensign complaint.
Supporters of the proposed rule say the rising number of complaints against department lawyers demonstrates the need for a new approach. America First Legal, a conservative group founded by Stephen Miller, urged DOJ to grant itself exclusive authority over ethics complaints in comments on the proposal. A coalition of 14 Republican state attorneys general also backed the rule in public comments, arguing it would provide a more uniform approach to attorney ethics while balancing state interests.
Opponents include mostly Democratic state attorneys general, the American Bar Association and judges from the Supreme Court of Georgia, who warned the rule threatens “significant federal overreach” into an area reserved to the states. The ABA and other critics said DOJ should take concerns about bar membership and regulation to Congress rather than attempt to reshape the system administratively.
Libertarian-leaning critic Matthew Cavedon of the Cato Institute acknowledged flaws in the state bar process but said the proposed rule would make accountability worse. He told NPR that federal prosecutors are powerful and often unaccountable, and that shifting oversight internally would reduce transparency and independent discipline.
DOJ says its Office of Professional Responsibility (OPR) would serve as the attorney general’s designee for internal review of bar complaints. But critics argue that relying on OPR — an internal mechanism now subject to changes in leadership — would not provide meaningful outside accountability and could shield wrongdoing from future state inquiries. Their concerns were heightened after the administration removed the head of OPR, the director of the U.S. Office of Government Ethics, and numerous inspectors general early in the presidency, actions critics say reflect a broader weakening of independent oversight.
Legal observers note the rule was proposed while Pam Bondi led the department; she has since been removed, and many expect Acting Attorney General Todd Blanche to continue efforts to finalize the regulation. DOJ did not respond to questions about its plans.
Critics say the proposal is part of a pattern to weaken safeguards that serve as independent checks on executive power. Swartz, senior ethics counsel at Democracy Defenders Fund, described the rule as reflecting a broader effort to “degrade, destroy and remove safeguards that are intended to be independent checks on abuses of power.” Supporters maintain the change is necessary to prevent politically motivated complaints from chilling DOJ attorneys’ representation of the United States.
The rule has prompted a flurry of public comments from state attorneys general, legal organizations and advocacy groups on both sides, and its fate may hinge on legal challenges over whether it conflicts with the McDade-Murtha Amendment and longstanding state authority to police attorneys.