Words & Phrases We Could Do Without

'Legal ethics'

Donald Trump’s habitual lying has set the tone and permission structure for his regime, even for lawyers obligated to tell the truth as officers of the court. In this Justice Department, the notion that prosecutors are bound by professional obligations and must uphold something called “legal ethics” is increasingly farcical.

Courts over the last 10 months repeatedly have called out government lawyers for misrepresenting key facts. In September, the Justice Department had to confess that it widely misstated critical facts in an immigration case. “Donald Trump’s Department of Justice made a startling admission in court: It had put forth false information in its effort to secretly deport hundreds of young immigrants to Guatemala in the dead of night,” Slate reported. “DOJ lawyers had previously told a judge that the children’s parents were all clamoring for them to be sent back to Guatemala. In truth, however, not a single parent requested their child’s return, and many were not prepared to take them in if they suddenly arrived on their doorstep.”

Photo by Nellie Adamyan

More recently, in the Portland case involving deployment of troops, the government had to retract an outrageous claim. “[I]t is undisputed that nearly a quarter of the agency’s entire FPS capacity had to be redirected over a relatively short period to a single location in one medium-sized American city due to the unrest there.” The government had to admit in a letter to the court that only “13.1 percent of the agency’s inspectors had to be redirected to Portland during the period discussed.”

These are hardly isolated cases. Just Security’s tracker reveals that judges in over 40 cases have found reason to “distrust…government information and representations.” 1/10th of that number would have drawn outrage and grave concern in any previous administration. But under this president, “courts have identified serious defects in the government’s explanations and representations—pretextual rationales (including retaliatory motives masked by pretext), false sworn statements, contradictions with the record, refusals or inability to answer basic questions, and litigation-driven ‘contrivances’—prompting judges to discount government submissions, compel expedited discovery, and withhold the presumption.”

Sadly, this is nothing new for MAGA lawyers too ambitious and unprincipled to defy Trump’s unconstitutional whims. A long list of lawyers were disbarred or otherwise punished in Trump’s first term for violating ethical obligations that should have restrained them from enabling an attempted coup in 2020. Bar associations exacted punishment for peddling the Big Lie and concocting bogus legal arguments to justify an unconstitutional scheme.

Courts can and should take corrective action in Trump 2.0. Granted, they have their hands full restraining a tyrannical executive, but they cannot let serial ethics violations go unaddressed. First, regardless of whether the opposing side files a motion, judges must demand lawyers explain how lies were presented to the court under penalty of perjury and sanction those responsible—before referring matters to state bar associations (more on that in a moment). Second, as we, along with other commentators have stressed, the presumption of regularity must be suspended for a regime that lies compulsively. The Trump regime deserves no presumption of good faith (e.g., in vindictive prosecutions, or in determination of a “rebellion” for troop deployment).

Lawyers’ ethical lapses have not, sadly, been confined to lying. Recall that a batch of big law firms have knuckled under to Trump in signing agreements that bind them to change hiring practices and pledge to do MAGA-approved pro bono work. However, last week the D.C. Bar took a critical step to deter this conduct that might compel spineless firms to reconsider their approach. As Charlie Savage reported for the New York Times:

Months after law firms made deals with President Trump to ward off punitive executive orders, the ethics committee of the District of Columbia Bar is warning that such arrangements may require firms to drop or obtain waivers from all clients who have interests at odds with the government.”

The DC Bar’s ethics committee further advised lawyers that “such arrangements may require firms to drop or obtain waivers from all clients who have interests at odds with the government.”

Oops.

The Bar cautioned that the deals could “amount to improper restrictions on the lawyers’ right to practice or interfere with their professional independence,” by forcing firms to take certain clients. Moreover, “if a firm that made a deal with the government and is trying to stay in the government’s good graces but also represents a client whose position is contrary to any of the government’s programs or policies, the deal would call into question whether the firm might pull its punches instead of zealously advocating its client’s interests.” Moreover, the Bar explained, a waiver is only effective if the client(s) know exactly what the firm’s deal with Trump entailed, something the firms themselves seem hard-pressed to explain.

That sort of aggressive enforcement of legal ethics should apply in cases in which government attorneys have misled courts, attacked and demeaned judges, sidestepped court orders, or defended blatantly capricious actions. Just Security, for example, documented “20 cases in which courts have found the Executive in noncompliance with judicial orders—ranging from willful disobedience and rebranding of enjoined conduct to flagrantly slow-walking compliance, missing or ignoring court-imposed deadlines, and refusing to provide court-ordered information—often prompting show-cause orders and contempt warnings.” Bar associations should investigate each documented offense to determine if ethical violations have occurred by the lawyers appearing in court and/or by their superiors.

Photo by Dmitrij Paskevic

If “legal ethics” has become an oxymoron, we are in deep trouble. And so long as they are routinely disregarded, the phrase is a hollow slogan. It need not be this way.

Justice Department attorneys’ ethical misconduct has become far too common. Absent real consequences, the transgressions will multiply. Without the legal profession’s self-policing, the most egregious illegalities of the Trump regime will pile up. Since judges cannot do all the heavy-lifting, lawyers themselves must stand up for the rule of law, lest the latter becomes an empty vessel subject to the urges of a dictator.