NEW YORK — The U.S. Department of Justice is facing renewed criticism after proposing a rule that legal experts say would expand its power and shield its own attorneys from accountability for professional misconduct, according to Christine Berger, Yasmin Abusaif, Joe Gaeta and Miriam Rosenbaum of the Brennan Center for Justice at NYU Law.
According to the Brennan Center experts, which include two former senior officials at the Justice Department, “the department proposed a rule that purports to give the attorney general authority to prevent state bar disciplinary authorities from investigating current or former DOJ attorneys for as long as the DOJ chooses to review those allegations.”
They argue that shielding misconduct from oversight would allow “the administration to abuse the DOJ’s immense power with impunity and further erode public trust in the justice system.”
Additionally, the Office of Professional Responsibility would be weakened, while whistleblower and civil service protections have been eroded because of the “efforts the second Trump administration has taken to dismantle the DOJ’s internal accountability systems.”
“DOJ attorneys wield immense authority in investigations, criminal prosecutions, and civil enforcement actions,” the Brennan Center authors wrote. Though those powers have always “been susceptible to abuse,” they said the “modern system of checks prevent those abuses” through both internal and external safeguards, including state bar disciplinary bodies “designed to prevent misconduct in the legal profession and maintain public confidence in the legal system.”
Historically, state bars and the DOJ’s Office of Professional Responsibility have had what the authors described as a “collaborative relationship.” If the DOJ investigated a matter and determined one of its attorneys committed misconduct, “it might refer the matter to the attorney’s state bar for further discipline.” State bars also often deferred to DOJ investigations because such cases can involve federal regulations and department rules outside their normal expertise.
Additionally, when the DOJ investigated a matter and a state bar “receives a complaint regarding the same matter,” the DOJ “might share the results…with the state bar.” However, that cooperation was voluntary, and state bars could also investigate misconduct and impose disciplinary measures after an attorney left the DOJ.
The Brennan Center said that relationship changed when the DOJ issued a proposed rule March 5 that would “have the attorney general take control of the timing, scope, and development of state bars’ misconduct investigations against DOJ attorneys, effectively insulating the DOJ from independent scrutiny by state bars.”
Under the proposal, the DOJ could ask state bar and disciplinary authorities to suspend their own investigations or disciplinary proceedings while the department completes its review. During that review, the proposal states that “the DOJ will order its employees not to provide nonpublic information to state bar investigations or disciplinary proceedings, effectively undermining the state bar’s oversight.”
The proposed rule also “provides no timeline within which the DOJ must complete its review.” The authors said that creates the “risk that the DOJ will indefinitely delay investigations or simply ignore credible allegations of attorney misconduct.”
Although framed as a request, the proposal also states that “if state bar disciplinary authorities ‘refuse the Attorney General’s request,’ the Justice Department will take ‘appropriate action’ to ‘enforce this regulation’ or prevent them from ‘interfering with the Attorney General’s review of the allegations.’”
The Brennan Center contends the rule “contradicts the framework established by Congress.” The McDade Amendment, passed in 1998, states that DOJ attorneys must comply with the professional responsibility rules of the states in which they practice, placing them under the same constraints and oversight as other attorneys.
The proposed rule comes amid broader institutional pushback against DOJ conduct. Courts have “taken the rare step of quashing the DOJ’s subpoenas,” while grand juries have “made the rare move of declining to return indictments sought by the DOJ.”
The current administration has also weakened both internal and external systems designed to hold the department accountable, the authors said. Along with “weakening internal oversight offices and undermining protections for whistleblowers,” they wrote that “the DOJ has pushed out career staff…who might push back on attempts to abuse the department’s power.”
By breaking down internal checks, senior DOJ leaders have begun “focusing on eliminating external constraints, such as those imposed by the judiciary.” One example cited was Acting Attorney General Todd Blanche, who has described being at “war” with federal judges who have ruled against the administration. The Brennan Center also noted that the Trump administration and its allies have called for the impeachment of several federal judges who ruled against the administration.
Overall, the Brennan Center authors warned that “allowing the department to avoid such oversight risks further abuses of its immense power and greater erosion of public trust in the justice system.”
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