Federal prosecutors hold the incredible authority to strip individuals of their lives, liberty, property, and reputations, yet they operate with nearly impenetrable legal protections. This unique position of power is balanced by a specific statutory command: that these attorneys remain subject to the same ethical oversight as every other member of the bar. A recently proposed Department of Justice (DOJ) rule, however, seeks to dismantle this remaining mechanism of external accountability.
Earlier this week, my colleague Matthew Cavedon and I filed a public comment with the US Department of Justice expressing our concerns with how the newly proposed rule would grant the attorney general a right of first review over ethics complaints against DOJ attorneys. By formalizing the longstanding practice that state bars suspend independent investigations until the DOJ’s Office of Professional Responsibility (OPR) concludes its internal inquiries, the Justice Department is attempting to ensure that federal prosecutors are held to a lower ethical standard than all other members of the Bar.
This proposal directly contradicts the congressional intent behind the McDade-Murtha Amendment. This statute requires that federally employed attorneys be subject to state laws and rules “to the same extent and in the same manner” as any other attorney. Under the proposed rule, a federal prosecutor would instead be shepherded into an internal system characterized by opacity and a history of failing to uphold professional standards.
Although the Supreme Court confected the doctrine of absolute prosecutorial immunity out of whole cloth, there is no legal basis for shielding federal prosecutors from state bar oversight. In fact, the Supreme Court specifically noted in Imbler v. Pachtman that prosecutors are uniquely subject to professional discipline by their peers. This principle was further codified by Congress through the McDade-Murtha Amendment. Internal oversight via the OPR cannot replace the independent state bar accountability intended by the Supreme Court and Congress alike.
The history of internal DOJ investigations demonstrates why self-policing is insufficient. The 2008 prosecution of Senator Ted Stevens serves as a stark example. Despite prosecutors concealing evidence that their primary witness had lied—and even suborned perjury—the internal consequences were minimal. Although OPR eventually recommended brief suspensions for two prosecutors, the Merit Systems Protection Board later overturned those findings because the Justice Department failed to follow its own internal procedures.
Similarly, in the prosecution of the Bundy family, a federal judge dismissed the indictment with prejudice due to “flagrant misconduct.” The prosecution had deliberately concealed evidence regarding the deployment of government snipers around the Bundy Ranch. Rather than face professional discipline, the lead prosecutor—who had prior findings of misconduct against him—transitioned to a “senior litigation counsel” role, tasked with training and mentoring new federal prosecutors.
The necessity of independent oversight is confirmed by historical precedent in other federal agencies. In 1985, the Veterans Affairs Administration (VA) conducted a comprehensive audit of its 47,000 physicians. The Inspector General discovered that 93 of these doctors had been disciplined by state medical boards, including 24 whose licenses had been suspended or revoked.
If not for state medical licensing boards, these practitioners would have remained hidden within the agency—protected by a shroud of internal secrecy. The legal profession requires the same external accountability. As my colleague, Jeffrey Singer, explains in his recent book Your Body, Your Healthcare, professional licensing regimes are often problematic in their own right and frequently act as protectionist barriers to entry that harm the very communities they claim to protect.
Nonetheless, federal employment status should not grant immunity from state-imposed ethical standards. We either maintain a licensing system for all or we have none at all. It is inconsistent and dangerous to exempt federal attorneys from the professional standards that govern their counterparts in the private sector.
Granting the DOJ a “right of first review” creates an institutional strategy of delay and decay. While OPR conducts its lengthy, confidential reviews, witness memories fade, and evidence is lost. The attorneys involved often transition to new positions by the time an internal inquiry concludes, effectively preventing any meaningful action by a state bar.
Our constitutional system of checks and balances is rooted in the principle that no single entity can be trusted to police itself. If agency rules are allowed to sideline state bar investigations, federal prosecutors will operate without the professional accountability envisioned by Congress and the Judiciary. We urge the Justice Department to withdraw this rule and respect the role of state bars in providing necessary professional oversight for those who hold immense power over the lives of the American people.
