The Last Gatekeepers
Why the Trump administration wants to neutralize state bar discipline.
In my research into complicity, lawyers make alarmingly frequent appearances as enablers of misconduct. It was a memo written by the Justice Department’s Office of Legal Counsel that offered the legal rationale for torture. In the Epstein case, it was the U.S. Attorney’s office for the Southern District of Florida that cobbled together a sweetheart deal that allowed Epstein to continue his crimes for another eleven years. Lawyers at the Justice Department diluted efforts by the U.S. Attorney to hold Purdue Pharma accountable in the mid-aughts, allowing the company to continue aggressively market Oxycontin as the opioid epidemic exploded. Lawyers tried to bully whistleblowers in the Theranos fraud and silence victims of Harry Weinstein.
In short, lawyers are often part and parcel of complicit systems — including those that become institutionalized into governments. As we have seen over the past decade, there have been many lawyers that have been actively facilitating the erosion of the rule of law. This is part of a global trend: As Ruth Ben-Ghiat details in her book, Strongmen, military coups are out; legal coups are in. (You have to read that in your best Heidi Klum Project Runway voice.) And Professor Kim Lane Scheppele (who I hope will be a guest speaker soon for my Complicity and Courage series) details how electoral autocracies (also called “competitive authoritarianism” — regimes that have the trappings of democracy, but nothing really behind them, much like a facade on a movie set — all have lawyers at the helm.
It used to be that at the very least, lawyers — even those working for an in corrupt governments — might be deterred by the prospect of criminal liability. John Mitchell, President Nixon’s attorney general, was convicted of conspiracy, obstruction of justice, and perjury, and spent nineteen months in prison. But our democracy has a second layer of protection against attorney misconduct: The state bar grievance committees. In Trump 1.0, many of those state bars worked — slowly and not against as many people as we might have liked, but they worked — and ended up disbarring or suspending the license of a number of lawyers who tried to thwart the peaceful transfer of power, including Rudy Giuliani, John Eastman, Jenna Ellis, and Kenneth Cheseboro. (Sydney Powell and Jeffrey Clark have been recommended for discipline in their respective jurisdictions.)
Now that the Justice Department itself has been hijacked, criminal liability — at least for misconduct at the federal level — is not a realistic possibility. So the only real accountability that exists at the moment (apart from state crimes) comes from state bar grievance committees, which can investigate complaints and discipline lawyers. That’s why it should worry us that the Justice Department is trying to limit state ethics probes into its lawyers. You can read the proposed rule here.
State bars, in their modern incarnation, began in the 1870s. The American Bar Association (ABA) was founded in 1878, to set a uniform ethics code — but it’s the state bars that determine who can “practice law” within their jurisdictions, set licensing standards (the bar exam), and adjudicate misconduct. As the former dean of admissions at Yale Law School, I was a gateway into the profession and interfaced with many of these bars when students graduated and took the bar. Here’s what I can tell you: States control the admission and discipline of lawyers in their jurisdiction, not the feds. In other words, what the Justice Department is trying to do is not a thing.
The sudden attempt to try to interfere in state bar grievance processes was oddly coincidental to a report that the State of Florida had initiated an investigation into Lindsay Halligan, the “U.S. Attorney” who had indicted James Comey and Leticia James. Are they related? Unclear. The Florida bar had indicated that Halligan was under investigation in a letter to the Campaign for Accountability, which had filed complaints about Halligan to the Florida and Virginia bars, where Halligan is admitted to practice.
However, yesterday, the Florida bar did a sudden about face, stating that its statement in the earlier letter was an error and that Halligan isn’t under investigation. Which, of course, is itself oddly coincidental coming on the heels of the sudden proposed “rule” by the Justice Department. Hmmm.
It’s pretty clear to me that the lawyers in this administration understands that right now the state bars are the only bodies that can actually impose accountability, and they want to render them impotent. And, since they have no actual power over these state bars, the claim that they will limit the bars’ ethics investigations is, in the pattern of everything else this administration has done — with law firms, universities, and corporations —, a not-so-veiled threat that the state bar associations better get on board.
Looks like it might be working.
