On Tuesday, word came that the legal disciplinary authority in Washington, D.C., was charging U.S. Pardon Attorney Ed Martin with ethics violations, kicking off proceedings that could result in penalties up to and including disbarment.
In so doing, it might have just helped make the case for the action the Trump Justice Department recently initiated to begin to combat the weaponization of such bar disciplinary tribunals — namely, against conservatives.
The D.C. Board on Professional Responsibility alleges that while serving as U.S. attorney last year, Martin — a conservative stalwart long loathed by the left — violated local rules of legal conduct in probing Georgetown Law School for its alleged continued promotion of DEI in its curriculum, and refusing to hire those affiliated with the school until it purged DEI accordingly.
“Lawfare/Barfare is alive & well,” said Jeff Clark, the recently departed chief Trump administration regulatory officer. “Apparently, DC’s Disciplinary Counsel cares not that 1) DEI is an unconstitutional violation of equal protection of the laws; & 2) the President had issued an executive order banning it if an institution takes federal money. Blatantly political.”
Martin himself had questioned that very Disciplinary Counsel, Hamilton P. Fox III, the former head of the D.C. Board on Professional Responsibility, about whether his tribunal was operating politically in correspondence from February 2025. Martin wrote a letter to Fox then, suggesting that the Democrat-dominated panel might be targeting those with opposing viewpoints with unmerited ethics probes and seeking information to ascertain whether it was true.
He would cite the D.C. Board’s pursuit of a former Trump I Justice Department official — one who would face years of Kafkaesque proceedings over his own alleged ethics violations in faithfully serving the president in connection with the 2020 election challenge. That official was none other than Jeffrey Clark.
These are but two of the myriad, often dubious, and historically unsuccessful but nevertheless crippling complaints brought against conservative lawyers, typically by the left’s lawfare apparatus, before like-minded state and local disciplinary authorities across the country — a practice, “Barfare,” about which I reported last fall for RealClearInvestigations. By making life hell for conservative counselors by hitting them with such complaints, the idea is to pick such legal talent off the playing field — while spooking others who might otherwise enter it — and thereby eliminate the left’s legal opposition.
Now, the Trump Department of Justice may finally be mounting a counterattack. On Feb. 26, it proposed a rule that would provide DOJ lawyers past and present with a modicum of protection from frivolous complaints by giving the attorney general the ability to intervene when they come under siege.
Under the proposal, should a third party lodge a bar complaint against such a lawyer alleging that he committed ethical violations while conducting federal work, or should disciplinary authorities “open an investigation into such allegations” absent a complaint, the U.S. AG would have a “right of first review” — to examine the case and suspend disciplinary investigations or proceedings pending the conclusion of her examination. Should bar authorities refuse to comply, the department could then “take appropriate action to prevent” such interference.
This additional layer of review could deter politically driven complaints and fishing expeditions by raising their costs. Challengers would risk an adverse Justice Department finding; the proposed rule suggests that bar authorities generally give weight to the department’s work. Meanwhile, such reviews could significantly draw out or leave bogus disciplinary processes in limbo — thwarting those seeking to punish conservative lawyers unchecked.
In justifying the rule, the Justice Department noted that “political activists have weaponized the bar complaint and investigation process” against senior officials including Deputy Attorney General Todd Blanche, who chided the D.C. disciplinary authority in the wake of its action against Martin; former Acting Deputy Attorney General and now Judge Emil Bove; and others, on down to career DOJ attorneys. What’s more, some authorities have recently opened probes into DOJ attorneys “without notifying and coordinating” with the Justice Department’s own disciplinary review organs — seemingly threatening its own jurisdiction over cases alleging professional misconduct.
“This unprecedented weaponization of the State bar complaint process risks chilling the zealous advocacy by Department attorneys on behalf of the United States, its agencies, and its officers,” the department wrote.
That the regulation covers complaints brought against former Justice Department attorneys suggests it may have been inspired in part by Clark’s case. A highly qualified former Justice Department official who served in the department’s senior ranks under multiple presidents, Clark’s thoughtcrime was that he “believed that there was potentially election-altering fraud or irregularities in Georgia and other states, requiring resolution before the fast-approaching January 6, 2021, election certification date,” as I reported for RealClearInvestigations.
So, while serving as Acting Assistant Attorney General for the Justice Department’s Civil Division in 2020, Clark “wrote a draft letter dated Dec. 28 and addressed to Georgia leaders recommending that the state legislature convene a special session to further probe potential irregularities and take remedial steps as necessary.”
He pressed his case with his superiors, and ultimately with President Trump himself, but did not prevail over them. The message went unsent — only for unnamed ex-Trump administration officials to leak its contents to The New York Times, which would report on it shortly after President Biden’s inauguration. In July 2022, after the then-Democrat-led Senate Judiciary Committee had filed a complaint against Clark, the D.C. tribunal charged Clark with violating the D.C. Rules of Professional Conduct, setting off a still-running disciplinary process.
The tribunal’s complaint asserted that Clark participated “in conduct involving dishonesty” when he wrote the letter, and accused him of “attempt[ing] to engage in conduct that would seriously interfere with the administration of justice.” The tribunal argued that Clark’s senior colleagues at the Justice Department “disagreed with his views on potential election fraud in Georgia,” so the statements in his drafted, unsent letter must be fraudulent.
Last July, the board recommended that he be disbarred. Even some of Clark’s critics, including former AG William Barr, under whom Clark served, panned the recommendation, which is currently pending before the D.C. Court of Appeals. His lawyers have raised many defenses, one of which centers on jurisdiction — an element also at the heart of the justification for the Justice Department’s proposed rule.
How could a local D.C. disciplinary board sanction Clark for alleged “attempted dishonesty in a draft letter that recommended a change in policy or position where that document was not approved and never even left the office,” his lawyers asked in one hearing, particularly when the work was conducted as a federal lawyer while providing counsel to the president.
Federal law mandates that federal attorneys adhere to the laws and rules of the localities in which they operate. But the DOJ notes that the associated regulations are ambiguous about who should enforce those standards. This is “problematic” in the department’s view, since it “had previously taken the position that State bars had no authority over its lawyers in the performance of their official functions.” That state and local authorities could police the official acts of federal lawyers — including over their mere suggestions of potential alternative approaches to legally murky matters — could wreak havoc on the DOJ and spark a constitutional crisis.
Constitutional scholar John Eastman, a non-DOJ lawyer who has likewise been embroiled in a yearslong fight with bar disciplinary authorities in California regarding the legal counsel he provided President Trump in challenging the 2020 election, welcomed the proposed rule.
“Scaring attorneys away from representing conservative clients and causes is the very purpose of the weaponization, not just those in the department but private attorneys as well,” he told me. “It is an abuse of the disciplinary process that needs to end, and it is a particularly egregious abuse, threatening separation of powers, when it is deployed against DOJ attorneys defending executive orders and other actions of the President of the United States.”
Eastman’s statement inadvertently highlights challenges that would remain, even if the DOJ’s rule is adopted. A former Justice Department official flagged several of them.
For starters, even if the DOJ exercises its right of first review and finds that a complaint or probe is egregious and unjustifiable, nothing in the rule prevents a state bar authority from nevertheless resuming hearings or investigations after the department completes its work. What’s more, the separation of powers issue would remain if a state or local disciplinary tribunal can punish a current or former DOJ lawyer for official work while in federal office. Supreme Court precedent suggests Justice Department lawyers should have immunity from punishment by state and local authorities for official acts — yet the DOJ rule fails to ensure that the department would preempt bar disciplinary authorities in anything but process.
And still, should the Justice Department intervene, this might just further elongate the disciplinary process, leaving challenged current or former department attorneys in limbo and accruing still-greater legal fees. The charges brought against Martin just days after the Trump administration proposed its rule heighten the stakes of getting this right.
Federal lawyers cannot be held hostage by a leftist lawfare apparatus that threatens their destruction — whether during or after their time in office — for daring to faithfully represent Republican administrations.
https://thefederalist.com/2026/03/12/trump-doj-is-finally-taking-on-the-corrupt-dc-bar-association/
No comments:
Post a Comment