Bondi Blues
Earlier this week, and mostly along party lines, the Senate confirmed Pam Bondi to serve as the United States Attorney General.
You will note that this job is not called “Attorney General of the President,” and at least for now, the Department of Justice’s website includes this definition:
The Judiciary Act of 1789 created the Office of the Attorney General which evolved over the years into the head of the Department of Justice and chief law enforcement officer of the Federal Government. The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested. In matters of exceptional gravity or importance the Attorney General appears in person before the Supreme Court. Since the 1870 Act that established the Department of Justice as an executive department of the government of the United States, the Attorney General has guided the world's largest law office and the central agency for enforcement of federal laws.
Shortly after she was confirmed, Bondi issued a memo in which she seems to have announced that the Department of Justice is actually there to represent the President and his interests:
When Department of Justice attorneys, for example, refuse to advance good-faith arguments by declining to appear in court or sign briefs, it undermines the constitutional order and deprives the President of the benefit of his lawyers. It is therefore the policy of the Department of Justice that any attorney who because of their personal political views or judgments declines to sign a brief or appear in court, refuses to advance good-faith arguments on behalf of the Administration, or otherwise delays or impedes the Department's mission will be subject to discipline and potentially termination, consistent with applicable law.
News of this memo and apparent, um, rewriting of centuries of federal law traveled fast, and the social media “subpoenas” issued to me when things like this happened followed. (That’s why I didn’t blog this until now—too busy in the comment section.) “I don’t know much about how this is supposed to work, but this sounds really wrong? Is it wrong?”
Now, I am not an expert in government ethics, but no, this is not how it is supposed to work and it is wrong. Department heads (and for that matter, everyone else) cannot unilaterally change the function of their department, and this is one of 17,392 constitutional crises created in the last couple of weeks.
Moreover, the DOJ is not counsel to the President. White House counsel represents the office’s interests, and beyond that, any president is free to retain their own counsel to advance their personal interests. Both Trump and Bondi know this, of course—Bondi was Trump’s personal counsel during his first impeachment.
But putting matters outside my expertise aside, the DOJ is the largest law firm in the world, and the Rules of Professional Conduct still apply (even if there may not be a lot of interest in enforcing them). And it appears Bondi is encouraging career prosecutors, who swore an oath to the Constitution and have agreed to follow the Rules as a condition of obtaining and keeping their law licenses, to commit some incredibly banal misconduct (in addition to, you know, all the other misconduct).
First, sometimes lawyers (government and not) have a duty to not participate in a matter due to their “personal political views or judgments.” If a client persists in advancing a position the lawyer believes to be morally repugnant, the lawyer may withdraw. (Rule 1.16(b).) That’s permissive, not mandatory, but beyond that. Rule 1.7(a)(2) prohibits lawyers from taking on representation when their ability to do so is materially limited by their own personal interests. As a hypothetical, let’s say a DOJ attorney needs to defend a lawsuit aiming to strike down a recent executive order banning gender-affirming care for children and adults under 19. And let’s say that the DOJ attorney has a transgender daughter* whose care is at risk of being cut off. That attorney will have a very hard time pursuing the government’s position, knowing that if they succeed in their job, their child will suffer. That’s a material limitation conflict, and if the attorney believes they won’t be able to handle the representation appropriately, they must decline or withdraw. This is a conflict that cannot be waived. Under “normal” circumstances, the DOJ attorney could decline to work on that case (as they can and must when there’s a more traditional conflict) and their supervisor would assign someone else to handle it.
(*I would hope that even without a transgender daughter, the DOJ attorney is a decent human being who understands that gender-affirming care saves lives and doesn’t want kids to die, but having a loved one directly at risk is a more concrete example of this conflict.)
Model Rule 3.1 and various procedural rules (Rule 11 of the Federal Rules of Civil Procedure, for instance) prohibits lawyers from advancing positions they know to be frivolous or unsupportable in fact or law. On the criminal side, Model Rule 3.8 prohibits prosecutors from prosecuting a charge that they know is not supported by probable cause. This is where “personal judgment” (along with “good faith”) is likely going to come in—because “judgment,” by definition, is subjective. A rank-and-file DOJ attorney (or any attorney) needs to be able to say “hey, boss, I tried, but I really can’t find any reasonable legal or factual support for this argument” without risking getting fired. I encourage my own associates and colleagues to say that to me—the Law According to Stacie Rosenzweig is no more authoritative than the Law According to Pam Bondi, but here we are.
This sort of policy is going to create havoc in the DOJ chain of command, as well—Rule 5.1 requires supervisory lawyers to take reasonable measures to make sure their subordinates are abiding by the Rules. And for the junior lawyers, acting on “orders” from a supervisor probably won’t save you unless you’re acting in accordance with your supervisor’s “reasonable resolution of an arguable question of professional duty.” (Rule 5.4) And, Rule 8.4(a) prohibits lawyers from knowingly assisting or inducing other lawyers to violate the Rules—“do this or you’re fired” seems almost a textbook inducement, but what do I know?
Whether there will be any appetite for enforcing these Rules, if the Bondi policy does get implemented in visible ways, is another question. DOJ attorneys are licensed in various jurisdictions, and each has their own priorities and level of comfort with publicity.
Sigh. The photo accompanying this post is a free stock image of Bondi Beach (pronounced Bond-EYE, not Bond-EE like the subject of this post) in Australia, which seems a lot more pleasant than everything else going on right now. I promise this blog under Trump II won’t be all Not About Politics. Maybe the Pringles Pooper will make a comeback?
