Durbin, Senate Democrats Slam Proposed DOJ Power Grab Targeting State Bar Associations’ Ethics Probes

Durbin, Senate Democrats Slam Proposed DOJ Power Grab Targeting State Bar Associations' Ethics Probes

In written comment to the Justice Department, the Senators denounce the proposed rule and encourage its rejection

WASHINGTON - U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, led a group of Senators-including all Senate Judiciary Committee Democrats-in a written comment to the Department of Justice yesterday, denouncing a proposed rule overriding state bar authorities' ethics probes.

The proposed rule is in direct violation of the McDade Amendment, which was designed to confirm that the Attorney General did not have the authority to exempt Department attorneys from the ethical standards to which all barred attorneys are held. The McDade Amendment was enacted by Congress in 1999 and has operated without serious issue for more than two decades.

The Senators began with an overview of why the proposed rule should be rejected, writing: "The Proposed Rule violates the express statutory language of the McDade Amendment by subjecting DOJ attorneys to a wholly different process for adjudicating ethics complaints than is applicable to other attorneys in the state where a DOJ lawyer is barred; DOJ has no authority to impose regulations or conditions on state bar disciplinary authorities; The Proposed Rule gives the Attorney General a tool to sabotage state bar inquiries into the conduct of DOJ lawyers; The Proposed Rule would allow senior DOJ political appointees to insulate themselves from professional consequences for unethical conduct committed while serving at DOJ; and The Proposed Rule is arbitrary and capricious, as it is unnecessary, and DOJ has provided no evidentiary support for its claims."

After providing historical context for the McDade Amendment and the proposed rule's conflict with its precedent, the Senators justify the rule's rejection as unlawful with the following arguments:

1. The new rule violates the express language of the McDade Amendment.
2. 1. The proposed rule contravenes the plain language of the McDade Amendment.
   2. The proposed rule usurps a policy choice already made by Congress.
   3. The proposed rule gives the AG a "kill switch" to shut down state bar ethics investigations against DOJ lawyers.
3. DOJ is not authorized to regulate state bar authorities under the McDade Amendment.
4. The proposed rule hurts transparency and accountability in contradiction of the McDade Amendment's intent.
5. 1. The proposed rule effectively immunizes political appointees at DOJ from independent accountability for directing attorney misconduct.
   2. The new rule disables an important mechanism for resisting pressure to engage in misconduct.
6. The proposed rule is arbitrary and capricious.

The Senators concluded with the following statement: "The Proposed Rule is ultimately nothing more than a transparent effort to continue the Trump Administration's weaponization of the justice system against its political enemies. If the AG truly wants DOJ lawyers to avoid discipline proceedings before state bar authorities, there is a better solution: take care to see that DOJ attorneys conduct themselves according to the highest ethical standards, and do not ask them to mislead courts or evade court orders."

Along with Durbin, the comment is signed by U.S. Senators Sheldon Whitehouse (D-RI), Amy Klobuchar (D-MN), Chris Coons (D-DE), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Cory Booker (D-NJ), Alex Padilla (D-CA), Peter Welch (D-VT), Adam Schiff (D-CA), Ben Ray Lujan (D-NM), and Catherine Cortez Masto (D-NV).

For a PDF of the comment to the Department of Justice, click here.

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