“Lawyers who want to improve their writing are often advised to read Brian A. Garner’s Legal Writing in Plain English: A Text with Exercises (3d ed. 2023). It is a very good book for younger lawyers to learn to write well, but not the best for more experienced lawyers. Ryan McCarl, a practicing litigator and law professor, has published a much better book titled Elegant Legal Writing. Ryan McCarl, Elegant Legal Writing (2024).”

Today I am writing about John G. Snow’s recently published Rules To Speak By. I will say what I said above: there are other books recommended for law students studying rhetoric—a rather new discipline after its study lapsed after nearly 2000 years—but Snow’s book is a revelation for experienced attorneys striving to employ the best practices in their practice of advocacy.

What distinguishes Snow’s book from others is that his recommendations are evidence-based. Much of what we know about communication has come from research by social psychologists in the last 20 years. But unfortunately, that research has not trickled down to lawyers, who have relied on earlier pronouncements that recent studies have debunked.

Consider this. At every CLE you have ever attended where the topic is opening or closing argument, you will see these statistics on some presenters’ PowerPoint slides: 7% of your message is communicated by your words, 38% by your tone of voice, and 55% by your body language. But have you ever heard anyone in the audience ask the basis for this assertion? No, like everyone else, we lawyers are just as susceptible to accepting whatever “they” have declared to be true without question. But in this case it is utter nonsense derived from a misinterpretation of research done on an entirely different issue. How many lawyers have over the last 60! years tailored their delivery to these bogus figures. p. 95

What about PowerPoint presentations? You may have thought that whatever audience you are speaking to will remember more of what you tell them if it is also displayed on a slide. The visual with the oral is supposed to enhance memory and comprehension. Again wrong. Just the opposite, in fact. Snow quotes brain scientist John Medina who says that the more text one has to read, the greater the “cognitive overload.” “Too much of it causes the brain to shut down, especially when it is trying to process competing information like spoken words.” p. 83.

However, a picture alone is worth a thousand words. An image, accompanied by a one- or two-word explanation, is a powerful communicator. Memory degrades in time, but “One study showed that adding pictures to a presentation boosted the audience’s memory of it three days later by 65%.” p. 83.

If you choose to, you can read dozens of books by noted trial lawyers or attend a similar number of CLE programs and not learn all the tactics and techniques Snow describes in a scant 150 pages. Tactics and techniques some of the best trial lawyers in the country use. Tactics and techniques that are justified by successes in the courtroom, now understood and backed by hard science.

So, what will you learn?

You will learn how to present a lengthy argument and keep your audience on the edge of their seats wanting to hear what you are going to tell them next. Chapter 1.

You will learn how to get the jury’s trust by entertaining them, inspiring them, and making them feel important, not because you tell them how important their role is to the criminal justice system and to our democracy, but by making them feel that what they are doing will have a meaningful impact on the lives of others. Chapter 2.

You will learn how to construct your argument in a way that your audience will be able to relate all the facts and themes to the central truth they must decide. Chapter 3.

You will learn ways to simplify your presentation to minimize the effort your audience must make to understand what you are saying. Chapter 4.

You will learn the difference between communicating an argument in writing, such as in a brief, and in oral argument, such as before a jury and a judge. Chapter 5.

You will learn how to overcome the curse of the PowerPoint and make it an effective tool to convince the jury that there is only one conclusion they can reach consistent with the law and the facts. Chapter 6

You will learn how to use your voice, Chapter 7 and your body language, Chapter 8 to convey your message and enhance your credibility.

In Chapter 9, you will learn the importance of being yourself and how ironically practice helps bring out your authentic self. Chapter 10

In what was for me one of the most interesting discussions of the science of advocacy, Snow discusses the use of stories. Chapter 11. How many times have we been told that the most effective means of communication is through storytelling? This is not a myth. We know it to be true from the role story has played in recorded history and the impact we assume it had before recorded history. But why. For the answer to that question, you will need to look at p 144,

For experienced trial lawyers, this is a must-read. The reason is that when we know the why of things, we can do far more than just repeat practices that have worked for us in the past; we have the knowledge we need to improve our practices and innovate. And that is what makes Snow’s Rules To Speak By such an important addition to the canon.

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I believe that both movements are wrong, that zealous advocacy is an ethic that lawyers must subscribe to, and that zealous advocacy advances the public welfare in ways that advocacy solely on behalf of causes does not.

The first part of this chapter discusses what it means to be a zealous advocate; the second part discusses what motivates lawyers to practice law the way that they do; and the third part discusses why zealous advocacy is an essential component of our system of justice.

What Is a Zealous Advocate?

Examples of zealous advocacy are found throughout fiction and real life. In the movie 12 Angry Men, 11 jurors voted to convict a young man of first-degree murder until Juror #8 convinced

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them that the evidence proved that the defendant was inno-cent.¹ In real life, Clarence Darrow epitomized the zealous advocate. Darrow is remembered for his defense of John Scopes, who was prosecuted for teaching the theory of evolution;² for saving the lives of Nathan Leopold and Richard Loeb, who had murdered 14-year-old Bobby Frank in their pursuit of com­mitting the perfect crime;³ and for his successful defense of 11 Black men in Detroit who were prosecuted for killing a White neighbor during a confrontation with a mob after one of the defendants, Henry Sweet, moved into a White neighborhood.⁴

Many people know that Darrow represented Leopold and Loeb and that he saved them from execution. But not everyone knows that Darrow pled these young men guilty and convinced Judge John Caverly to spare their lives at sentencing. Fewer still know that the sentencing proceedings lasted a month, that the state put on 80 witnesses, and that Darrow decided not to con­test the state’s evidence because nothing about the crime was in dispute, only why it happened.⁵

Darrow’s defense was that Leopold and Loeb murdered Frank because they suffered from a diseased mind. In making his case to the court, the defense had to defeat the prosecu-tion’s effort to convince Judge Caverly that the court should

1. 12 Angry Men (1957 Film), WIKIPEDIA, https://en.wikipedia.org/wiki /12_Angry_Men_(1957_film).

2. The Clarence Darrow Digital Collection: The Scopes Trial (1925), UNIv. OF MINN., https://librarycollections.law.umn.edu/darrow/trials_details .php?id=7 (last visited Jan. 7, 2026).

3. The Clarence Darrow Digital Collection: The Leopold & Loeb Trial, UNIv. OF MINN., https://librarycollections.law.umn.edu/darrow/trials_details.php ?id=1 (last visited Jan. 7, 2026).

4. The Clarence Darrow Digital Collection: The Sweet Trials, Clarence Dar­row and Race, UNIv. OF MINN., https://librarycollections.law.umn.edu/dar row/trials_details.php?id=6 (last visited Jan. 7, 2026).

5. The Leopold & Loeb Trial, supra note 3.

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exclude psychiatric testimony because Darrow had not raised an insanity defense. Darrow presented as modern a defense as any found in a courtroom today, calling to the stand two psy­chiatrists, an endocrinologist, and a neurologist.⁶

Darrow is also the archetypal example of zealous advocacy gone too far; Darrow was prosecuted twice for attempting to bribe two jurors while defending John and James McNamara, who were accused of bombing the Los Angeles Times in 1910. Darrow’s first trial ended in a not guilty verdict, the second in a hung jury-eight to four for conviction.⁷

There is substantial evidence today that Darrow was guilty of attempting to bribe both jurors. In the first trial, Darrow did not quite admit his guilt but argued that if he had bribed the juror, he would have been justified. He argued that he was not being prosecuted because he attempted to bribe a juror, but because he was “a lover of the poor, a friend of the oppressed because I have stood by labor for all these years” and because the true criminals, the ones who had amassed their power through bribery, were the business groups arrayed against him.⁸

In the Leopold and Loeb case, Darrow was a zealous advo­cate, providing his clients with the most vigorous representa­tion possible: making brilliant tactical decisions, presenting the best scientific evidence available, and arguing a defense of men­tal disease without raising the more difficult and often unsuc­cessful defense of insanity. But in the McNamara prosecution, Darrow acted as a zealot. Rather than risk a conviction and the certainty of execution, he chose bribery. And when he was

6. Id. The Clarence Darrow Digital Collection: The Bribery Trials of Clar­ence Darrow, UNIV. OF MINN., https://librarycollections.law.umn.edu/darrow /trials_details.php?id=17 (last visited Jan. 7, 2026).

7. The Bribery Trials of Clarence Darrow, supra note 6.

8. GEOFFREY COWAN, THE PEOPLE V. CLARENCE DARROW: THE BRIB­ERY TRIAL OF AMERICA’S GREATEST LAWYER (1994).

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prosecuted for bribery, Darrow presented a political defense: that he was being prosecuted because he had stood up for the poor, the oppressed, and labor against a business establishment bent on crushing him.

A federal circuit judge recently told me that our system of justice, civil and criminal, cannot work, and certainly cannot work well, unless there is a contest between advocates repre­senting the interests of their clients with zeal.⁹ But what does zeal mean? It is easy to see that Clarence Darrow provided zealous advocacy in defending Leopold and Loeb, but not when he defended the McNamara brothers. Our adversarial system of justice does not tolerate lawyers who violate rules of professional conduct or break the law in pursuit of an outcome. As the lawsuits to overturn the 2020 presidential election have shown, any lawyers who believe that their client’s cause justi­fies filing lawsuits with no basis in fact will come to realize that there is a price to be paid for abusing the judicial system—a price that may cost them their freedom, their reputation, and the privilege of practicing law.

A federal district judge who was previously a state judge and before that a federal prosecutor said to me recently that the level of incivility between civil lawyers is at times disheartening, whereas dealings between defense attorneys and prosecutors are generally cordial.¹⁰ He was referring to conduct that is far more often exhibited in civil litigation than in criminal, such as maliciously accusing opposing counsel of misconduct, engaging in obstructive behavior during depositions, or willfully disobey­ing court orders (the list goes on and on). Such conduct is not advocacy at all; it is sanctionable, and when uncovered, no one is fooled by the claim that counsel were justified in their actions by the obligation of zealous advocacy.

9. Interview March 2024.

10. Id.

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Any discussion of what it means to be a zealous advocate should begin with an acknowledgment that, except for the Dis­trict of Columbia and Massachusetts, no jurisdiction expressly requires that a lawyer be a zealous advocate on behalf of a

client.”The ABA Model Rules of Professional Conduct, which

has been adopted in some form by every state, uses the words zeal, zealous, or zealous advocacy only in the preamble and in the comment to Rule 1.3, neither of which imposes a binding obligation on lawyers. Indeed, 13 states have had these words removed from their ethical rules. Florida rejected a proposal to remove the words zeal and zealous from Florida’s Code of Pro­fessional Conduct.¹²

In criminal cases, lawyers and law professors have anchored the obligation of zealous advocacy in the right to coun­sel guaranteed by the Sixth Amendment and in the right to due process of law provided for by the Fifth and Fourteenth Amendments.¹³ Although the Supreme Court has opined on what zealous advocacy means, the Court has set a low bar for the kind of representation defense counsel is constitutionally required to provide-a bar far lower than zealousness.

The Supreme Court discussed zealous advocacy in McCoy

v. Court of Appeals of Wisconsin, observing:

The attorney must . . . provide his or her client pre­cisely the services that an affluent defendant could

11. Anita Bernstein, The Zeal Shortage, 34 HOFSTRA L. REV., 1165, 1188 (2006), https://scholarlycommons.law.hofstra.edu/hlr/vol34/iss3/17.

12. Jim Ash, Supreme Court Declines to Erase “Zealous Advocacy” from Bar Rules, THE FLORIDA BAR NEWS (Sep. 5, 2024),

https://www.florida

bar.org/the-florida-bar-news/supreme-court-declines-to-erase-zealous -advocacy-from-bar-rules.

13. David Luban & W. Bradley Wendel, Philosophical Legal Ethics: An Affectionate History, 30 GEO. J. OF LEGAL ETHICS 337 (2017).

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obtain from paid counsel . . . the attorney must be zeal­ous and must resolve all doubts and ambiguous legal questions in favor of his or her client.¹⁴

However, the Court has not held that the Constitu­tion requires that a defendant receive the assistance of a zeal­ous advocate. In Strickland v. Washington, the Supreme Court held that the Sixth Amendment requires only that a defendant receive “effective assistance of counsel.”¹⁵ To establish that a defendant did not receive effective assistance of counsel, the defendant must demonstrate that counsel “made errors so seri­ous that counsel was not functioning as ‘counsel,’”¹⁶ and that counsel’s lapses rendered the trial so unfair as to “undermine confidence of the outcome.”¹⁷ What this means is that a lawyer need only be “reasonably effective,” and that in considering a claim that defense counsel did not do all that counsel should have on behalf of a defendant, courts are to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”¹⁸ To make it perfectly clear that the measure of professional competence was not to be defined by ethical provisions that might place a higher burden on counsel, such as one of zealousness, the Court stated that ABA standards and the like are merely “guides.”¹⁹

Where a lawyer has failed to live up to their obligations under the very low standard of “effective assistance” there are consequences: a new trial for the defendant, potential sanctions against the lawyer by the bar, and in rare cases a malpractice

14. McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 444 (1988).

15. Strickland v. Washington, 466 U.S. 668 (1984).

16. Id. at 687.

17. Id. at 694.

18. Id. at 689.

19. Id.

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suit. Where a lawyer fails to provide zealous representation, however, the defendant has no remedy—because the law does not recognize an obligation to advocate zealously, even though it could make the difference between a not-guilty verdict and a life behind bars.

In civil practice as well, there is no requirement that an attorney provide zealous advocacy in the representation of a client. But, unlike criminal practice (except in rare cases), civil counsel face the very real threat of a malpractice suit if coun­sel are negligent in their representation. The threat of malprac­tice provides some impetus for counsel to provide careful, if not exactly zealous, representation.

What Motivates Lawyers to Practice as They Do?

We do not think about being a zealous advocate when we file a lawsuit or make an opening statement to a jury. When we first meet with a client, and they tell us their story, and they ask us our advice on what to do, or tell us what they want to do, we may become emotionally involved in the wrong they have suf­fered. We may hear how they acted in self-defense, how they trusted a business partner or lost a child in an accident. The more time we spend with our clients and their families, and the more evidence we uncover that supports their claim, the more committed we become to righting the wrong or to mak­ing them as whole as possible.

This is also true of attorneys representing small businesses or large corporations. While companies are artificial entities, they embody the interests of employees and stockholders whose financial well-being depends on the success of the company. Lawyers working in-house or as outside counsel may justifiably feel anger when their employer is faced with litigation counsel

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believes is unjustified. They are no less committed to protecting the business than lawyers representing an individual, because in a very real way, they are representing people as well.

Or we may have no sympathy for the client at all. We may represent a company in a commercial dispute, and the rightness or wrongness of the cause may in some cases be completely irrelevant, to the extent we are motivated by a desire to win and by the money we will earn for our efforts. But we will be compensated whether we win or lose (unless it is a contingency case). In such cases, what causes us to be enthusiastic in our efforts is pride in our work, and, if we are litigators, an over­whelming desire to win and to be regarded by our peers and the public as the best (or most feared) trial lawyer around. This is equally true for lawyers who are not litigators but want to be known as the “go-to” lawyer for every aspect of practice, from administrative law to zoning.

We are also motivated by the client’s expectations.

Civil and criminal clients may have different motivations, the former redress for alleged harm or insult or defeating lia­bility for the alleged harm or insult; the latter the defendant’s freedom, livelihood, and reputation. But lawyers generally believe that prospective clients are looking for a fighter, that clients want someone who will be just as angry as they are and will “fight like hell” for their cause. Thus, while some people are just jerks, much of the bad behavior we see in our practices is motivated by a drive to satisfy our clients’ actual or perceived expectations.

Sometimes the task requires that we act aggressively. I once had to cross-examine a middle-aged woman who had accused my client, the president of a medical records review company, of instructing her physician employees what life expectancy determinations to issue for each policyholder. The witness was assuredly viewed positively by the jury after the government’s direct was completed. But she had lied several times in the past,

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and as I took her through her lies, I became more confronta­tional, more accusatory, and by the time I became cruel, the jury didn’t hold it against me; she had betrayed their initial trust and they were angry.

On other occasions, when a lawyer has an important gov­ernment witness (often an expert) who can provide testimony that will support the defense, the lawyer might treat that wit­ness with kid gloves. I once cross-examined the president of the New York Mercantile Exchange about hedging commodi­ties. I was able to lay much of the foundation for my defense through his testimony. When he got off the stand, he walked up to me, held out his hand, and said he appreciated how much of a gentleman I had been. I was flabbergasted. And my cli­ent was none too happy by my failure to destroy this witness in cross (although his anger was somewhat assuaged when the jury came back with a hung verdict).

Why Zealous Advocacy Is an Essential Component of Our System of Justice

If various motivations are driving us to do our best for our cli­ents, why do we even need to consider whether there is an obli­gation to be zealous advocates, whatever the limitations of such advocacy are in a particular case?

Zealous advocacy requires more from us than just “doing our best.” It is part of an ethic that is critical to our identity as members of a profession engaged in the practice of law, not just people engaged in a business. Admittedly, this runs counter to both public perception and the actions of some lawyers who only view their work in terms of the wealth it can generate. And that perception could become reality if we as individuals do not commit ourselves to a calling that is greater than just a means to generate income.

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Zealous advocacy should have as powerful a hold on the practice of lawyering as the so-called Protestant Work Ethic has had on the exceptionally driven American workforce. It impels us to reach beyond our own perceived limitations even when we detest our clients, be they serial killers or corporate polluters. For those like myself who practice criminal law, the commitment to being zealous advocates is what keeps us from burning out even though 90+ percent of our clients are con­victed and go to prison. It is what causes us to forge ahead when the only thing we can do is convince the judge to impose a lower sentence than that sought by the prosecutor.

Some believe that eliminating zeal from ethical codes will reduce ethical violations or lapses. As I have tried to show, it is not zealous advocacy that is responsible for lawyers engaging in improper conduct. Accordingly, the causes of misbehavior will not suddenly evaporate with the elimination of language from an ethical code. Moreover, when individual lawyers abuse the legal system, there exist remedies that judges and bar asso­ciations can employ to sanction their misconduct. Indeed, the lines that lawyers must not cross are clearly identified in all eth­ical codes.

For instance, the Model Rules specify the duties of: adher­ing to strict truthfulness and avoiding deception (Rule 3.3), using the legal forum and process for legitimate means (Rule 3.1), respecting the forum as an officer of the court (Rule 3.5), refraining from abetting fraud and misconduct (Rules 3.3(a)(2), 3.3(c), and 3.4(b)), refusing to engage in conspiracy or collusive conduct that benefits the lawyer or the client (Rules 3.3, 3.4, and 3.5), asserting non-frivolous claims or defenses (Rule 3.1), expediting litigation (Rule 3.2), being fair to opposing counsel and not making untruthful statements to third parties (Rules 3.4 and 4.1), refraining from using false and misleading evi­dence and misinformation (Rule 3.4), and showing candor to the tribunal (Rule 3.3(a)).

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Where lawyers engage in practices that undermine the balance of power between parties, either through the filing of frivolous pleadings or demanding unnecessary depositions, or engaging in boorish behavior, these provisions provide ample grounds for discipline by bar associations.

Where these provisions have been inadequate to ensure that counsel acts within the bounds set by ethical rules, the demands of constitutional rights, or even the prevailing moral values, courts and legislatures have enacted rules and statutes to address abuses. For instance, when the practice of withhold­ing exculpatory information from defense counsel in violation of the Supreme Court’s decision in Brady v. Maryland²⁰ had become more common among some federal prosecutors, Con­gress enacted legislation to give the courts greater authority to sanction prosecutors who failed to follow the law.²¹ The long­standing practice by some prosecutors to strike jurors based on race was eventually prohibited by the Supreme Court.²² But that does not mean prosecutors suddenly became less zealous in their pursuit of justice.

Lawyers will occasionally confront hard questions that test their judgment in determining the best course of action. In 1966, Professor Monroe Freedman posited three such questions that he believed had to be resolved in favor of the defendadant.

1. Is it ethical to discredit a truthful witness?

2. Is it proper to knowingly put a witness on the stand who will commit perjury?

3. May a lawyer provide a client with legal advice when the lawyer suspects the client may use that advice to commit perjury?

20. Brady v. Maryland, 373 U.S. 83 (1963).

21. FED. R. CRIM. P. 5(f).

22. Batson v. Kentucky, 476 U.S. 79 (1986).

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(His answers so angered Chief Justice Warren Burger, that Burger sought to have Freedman disbarred.)

Fifty years later, Professor Todd Berger offered three more hard questions:

1. What is the ethically appropriate response when a vic­tim of a crime who does not wish to pursue prosecution asks a criminal defense attorney, “So, what happens if I don’t come to court?”

2. What should defense counsel say to a judge who directly asks counsel about incriminating information that is protected by attorney-client confidentiality when the judge can easily infer that defense counsel’s refusal to answer such a question is an indication of the client’s culpability?

3. Can defense counsel zealously advocate for an individ­ual client if doing so would potentially anger a prosecu­tor who is likely to retaliate by punishing the attorney’s other clients?

Professor Berger demonstrated that counsel can find the answer to these questions, or at least meaningful guidance, in the rules of ethics.²³ Zealous advocacy only comes into play when counsel must make a judgment call. In that case, the Supreme Court’s decision in McCoy tells lawyers that, “the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client.”²⁴

Some in academia argue that law students should be taught that the public good comes before the interests of the client.²⁵

23. Todd A. Berger, Professional Responsibility of the Criminal Defense Law­yer Reduz: The New Three Hardest Questions, 7 ST. MARY’S L.J. LEGAL MAL­PRACTICE & ETHICS 96 (2017).

24. McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 444 (1988).

25. Etienne C. Toussainte, The Miseducation of Public Citizens, 29 GEO. J. ON POVERTY L. 8c POL’Y 287 (Summer 2022).

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Of course, the academics who espouse this philosophy believe that what is in the public interest is not subject to debate. Most of them have spent the greater part of their careers teaching and little time representing clients. A full discussion of their ideas is beyond the scope of this chapter, but I will make a few observations.

With rare exceptions, such as where a judge appoints a lawyer to represent an indigent defendant, a lawyer is never required to represent any particular individual or cause. If a law firm or public office orders a lawyer to represent a client in a matter that the lawyer cannot in good conscience handle, the lawyer can and should resign. In other words, the ethic of zeal­ous advocacy suggests that if a lawyer cannot be a zealous advo­cate, he or she should not be an advocate at all.

Lawyers who believe that they should dedicate themselves to some public interest can represent parties in litigation they hope will change society. For example, those who believe that the administrative state has harmed small businesses and stifled competition can work with or for the U.S. Chamber of Com­merce and file lawsuits to limit the reach of regulations; those who believe that school boards have violated the First Amend­ment rights of students by banning books from school libraries can assist the American Civil Liberties Union in filing lawsuits to overturn a school board’s actions. Indeed, it is difficult to conceive of a mechanism that can bring more issues to the con­sciousness of the American public or more vividly illustrate the differences in values expressed by those issues than litigation instituted by zealous advocates.

This brings us to the final avenue available to lawyers who seek to change the status quo. Like any citizen, they can lobby for legislation that promotes their vision of the public good. And they can vote for those who share their vision.

Being a zealous advocate is something we do in part because of who we are but also because of what we aspire to be. It is a

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mindset that causes us to look for creative solutions to hurdles that everyone else accepts as just part of “how things are”: to seek out others in the profession for consultation and advice (which most will freely give), to dedicate ourselves to the con­stant improvement of our minds—which stimulates creativity— and our bodies—which gives us the stamina we need when we are working till all hours preparing for the next day in court.

Not everyone, for sure, but the longer an attorney practices law, the more they rely on what has worked in the past and become less committed to finding new and innovative ways to prevail. Since over 90 percent of defendants in state and fed­eral cases plead guilty, defense attorneys have fewer and fewer opportunities to go to trial, and they begin to lose their enthu­siasm for their work. They fail to realize that there are ways to win a case despite losing, that zealous advocacy provides a way to limit the harm to a defendant and the family by reducing the sentence that the defendant otherwise would get had the lawyer settled for nothing more than competent representation.

Throughout this evolution, the one thing that stays the same is the client’s expectation that the client is hiring a lawyer who will find a way to help them. Whether express or implied, lawyers agree to do just that. Based on that commitment, coun­sel is ethically obligated to provide the kind of representation the client has paid for. This is true whether it is enforced by the counts or rules or not.

One final caveat. Zealous advocacy is what we owe our cli­ents. But zeal for life beyond the law is what we owe to our­selves; we need to ensure that our dedication to the practice of law does not come before our commitment to our families and our mental and physical well-being. While there are times when we must allot all of our time to a specific task, we cannot allow the law to define us or consume us. No one will remem­ber our victories, but our children will remember our absences.

The headline to her article in Newsweek’s Saturday Periscope Section says:

Members of New York City Mayor Zohran Mamdani’s political organization have developed links with the Chinese Communist Party, raising questions about the extent of Beijing’s influence within the group.

Right off the bat, Tatlow’s piece contains a bald-faced lie. It is true that he is the most well-known member of the DSA, but he did not start the organization, and he does not hold a position of authority within it. It is not his political organization, full stop.

This falsehood is repeated in the first paragraph of her hit piece:

Democratic Socialists of America members, NEW YORK CITY MAYOR Zohran Mamdani’s political organization, have been cultivating connections with the Chinese Communist Party officials and agreeing to take pro-China positions, according to extensive minutes of internal meetings seen by Newsweek.

Once again, Tatlow falsely claims that the DSA is Mayor Mamdani’s organization. While it is true that, historically, certain political figures were so closely linked to an organization that it was said to be their organization. Adolf Hitler, the Nazi Party, Chairman Mao, the Chinese Communist Party, President Donald Trump, MAGA. But in the Mayor’s case, he has never led even the local chapter of DSA and has expressed his differences with DSA’s national platform.

Indeed, he was not even endorsed by the national organization and expressly disavowed major planks in its platform, such as defunding the police. CNN, https://www.wral.com/story/mamdani-faces-pressure-in-nyc-mayor-s-race-over-democratic-socialist-ideas/22136005/

Finally, Tatlow cites DSA’s New York Chapter’s website, which describes itself as “Zohran’s political home” and DSA’s claim that the Mayor’s victory would not have been possible without it. While it may be true that Mandami’s election was made possible because of the organizational efforts of DSA’s local chapter, How Socialism Won in NYC’s Mayoral Primary: Jacobin, https://jacobin.com/2025/08/nyc-dsa-zohran-mamdani-mayoral, that has nothing to do with whether the Mayor had any knowledge of, or connection to, the members of the DSA who met with officials of the Communist Party to discuss closer ties.

I wonder if Newsweek would have thought Ms. Tatlow’s article worthy of publishing if it were just about a socialist organization’s efforts to forge closer ties to the world’s leading socialist state, had she not thrown Mayor Mamdani into the mix. But who knows? Smear campaigns have a long and storied history in American Journalism. Just ask Thomas Jefferson. Ferling, John. Adams vs. Jefferson: The Tumultuous Election of 1800. Oxford University Press, 2004.

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The Trump administration is waging an unprecedented campaign to subordinate the Department of Justice to presidential will. Over the past nine months, hundreds of experienced career prosecutors have resigned or been fired. Attorney General Pamela Jo Bondi has warned (https://tinyurl.com/j7wastsy ) that lawyers who decline to vigorously defend the Administration’s policies based on their own ethical or legal judgment face termination. Deputy Attorney General Todd Blanche has declared( https://tinyurl.com/4tjjxt5u ) See, 43:04 - 44:37, the government “at war” with judges who rule against it.

The results are visible in courtrooms across the country. Federal judges—including Trump appointees—have admonished government lawyers for misleading statements, evasive answers, and outright disobedience of court orders. The internal mechanisms that once ensured compliance with ethical norms have been dismantled.

This Article proposes a remedy. Federal district courts possess the authority—under Federal Rules of Civil Procedure 83 and Criminal Procedure 5(f) and 57(b)—to issue formal orders at the outset of litigation. These orders should notify all counsel, and their supervisors, that they remain bound by state ethical rules, including the duty of candor, and that violations will result in personal sanctions, bar referrals, or contempt proceedings. This approach requires no new legislation. It demands only that courts use existing tools to preserve the integrity of proceedings before them.

II. The Legal Framework

A. The McDade Amendment

The McDade Amendment, 28 U.S.C. § 530B, provides that government attorneys “shall be subject to State laws and rules . . . governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” Congress enacted this statute to foreclose DOJ’s prior efforts (https://tinyurl.com/ye28nmu4) to exempt its lawyers from ethical rules binding all other practitioners. The statute applies to every government lawyer, including the Attorney General.

B. The Model Rules of Professional Conduct

Every jurisdiction has adopted ( https://tinyurl.com/2ve2ts8s ) rules derived from the ABA Model Rules. Two provisions are central here. Model Rule 3.3 prohibits lawyers from making false statements of fact or law to a tribunal or offering evidence they know to be false. Model Rule 8.4 defines professional misconduct to include dishonesty, fraud, deceit, or misrepresentation, and—critically—prohibits lawyers from inducing another to violate the rules or doing so through the acts of another. Supervisors who pressure subordinates to mislead courts are themselves subject to discipline.

C. Existing Procedural Authority

Federal Rule of Criminal Procedure 5(f), enacted as part of the Due Process Protections Act of 2020, requires district courts to issue an order at the first appearance in every criminal case confirming the prosecutor’s disclosure obligations under Brady v. Maryland and the consequences of violation. This model demonstrates that prophylactic orders reminding counsel of existing obligations are both permissible and effective.

Federal Rule of Civil Procedure 83(b) and Criminal Procedure 57(b) authorize judges to “regulate practice in any manner consistent with federal law” provided the alleged violator receives actual notice. Courts thus possess independent authority to issue orders reminding counsel of their ethical duties and the consequences of breach.

III. Evidence of Systemic Misconduct

A November 2025 report ( https://tinyurl.com/3dywf3jd ) by Just Security documented numerous instances of judicial criticism of government lawyers. The Brennan Center for Justice has catalogued ( https://tinyurl.com/4znw8ufw ) the dismantling of DOJ’s internal accountability mechanisms. Several cases illustrate the pattern.

Disobedience of Court Orders. In J.G.G. v. Trump (D.D.C.), Chief Judge James Boasberg found probable cause of criminal contempt after the administration launched deportation flights during a hearing and in defiance of written orders. He described “increasing obstructionism” and “deliberate” and “gleeful” defiance. In the Abrego Garcia litigation, Judge Paula Xinis has signaled contempt proceedings may follow after the government claimed it could not influence El Salvador to return a man it had unlawfully deported—despite having arranged his detention there by agreement.

Misrepresentation. In L.G.M.L. v. Noem (D.D.C.), the government attempted to deport unaccompanied Guatemalan minors over Labor Day weekend. DOJ counsel told the court the children were being returned at their families’ request. After Guatemala’s Attorney General disputed this, a junior official appeared to withdraw the claim,( https://tinyurl.com/yfdph474 ) acknowledging the government had no supporting evidence. Judge Timothy James Kelly (a Trump appointee) issued a preliminary injunction.

In United States v. Talbot (D.D.C.), the government defended a ban on transgender military service by citing studies that, Judge Ana Reyes found, said the opposite of what the government claimed. She wrote that the government’s summaries were “inexplicably misleading” and that “no one summarizing [the sources] in good faith could draw these conclusions.” At a hearing, she accused the government of treating her “like an idiot” and attempting to “gaslight” her.

Retaliation for Candor. Government attorney Erez Reuveni was praised by Judge Xinis for his candor in the Abrego Garcia case. The next day, Deputy AG Blanche placed him on administrative leave (https://tinyurl.com/2uxb9w4x ) for failing to follow supervisory directives and not “zealously advocating” for the United States. As the Fourth Circuit observed in a concurrence, “the duty of zealous representation is tempered by the duty of candor to the court . . . and the duty to uphold the rule of law, particularly on the part of a Government attorney.”

IV. The Proposal

At the initiation of any civil or criminal case, the district court should issue a written order, affirmed orally, informing all parties that:

1. All counsel are bound by the rules of professional conduct of the state in which they are licensed and the state in which they are practicing, pursuant to 28 U.S.C. § 530B.

2. Supervisory attorneys who instruct, encourage, or induce counsel to violate these rules are themselves subject to discipline under Model Rule 8.4(a).

3. Violations may result in sanctions, referral to the state bar or disciplinary committee, or contempt proceedings.

4. Counsel of record must provide a copy of this order to any attorney supervising them; government lawyers must provide a copy to the head of their office or section.

Defense counsel and civil litigants should file motions requesting such orders, supported by memoranda documenting the pattern of misconduct and the legal authority for judicial action. If counsel are concerned that such motions will damage their relationship with opposing counsel, they may petition the Chief Judge for a local rule amendment or seek mandatory ethics training requirements that emphasize supervisory liability.

V. Anticipated Objections

Some may argue that such orders are unnecessary because ethical rules already bind lawyers. But Attorney General Bondi has told DOJ lawyers that their “personal political views or judgments”—including their ethical judgments—must yield to the Administration’s litigation objectives. A judicial order counteracts this pressure by making clear that the court, not the executive branch, will hold lawyers accountable for misconduct in its proceedings.

Others may view such orders as judicial overreach. But Rule 5(f) already requires courts to issue prophylactic orders regarding Brady obligations. Extending this approach to ethical duties generally is a modest step, grounded in existing procedural rules and the court’s inherent authority to regulate practice before it.

VI. Conclusion

The disbarment of Rudy Giuliani and the pending proceedings against Jeffrey Clark demonstrate that bar discipline can reach lawyers who abuse the legal system for political ends. But those proceedings take years. Courts need tools they can deploy now, in real time, to deter misconduct before it occurs and to hold supervisors accountable when it does.

The Department of Justice’s client is not the President. It is the United States of America, and its lawyers’ loyalty belongs to the Constitution and the laws they are sworn to enforce. Federal courts must remain a forum where the rule of law prevails over political coercion. The orders proposed here would help ensure they do.

This white paper was written by Jon May, Amicus Chair, for Lawyers for the Rule of Law,(www.LFRL.org) a not-for-profit organization comprised of over 300 pro-bono lawyers organized to protect the foundation of our democracy and protect us all from autocracy. Daniel Arshack, President.

Jon May is a criminal defense attorney and former federal prosecutor.

Creative Criminal Defense Consultants

Cell: 954.439.6500

Email: jonmay@jonmaycriminaldefense.com

Website: jonmaycriminaldefense.com

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FROM: Jon May, Chair Amicus Committee, Lawyers for the Rule of Law

SUBJECT: Analysis of the Trump Administration’s Proposed Regulation Gutting the States’ Ability to Discipline Federal Government Lawyers and Officials for Violating the Rules of Professional Conduct and Disobeying Court Orders

DATE: Tuesday, March 10, 2026

The Trump Administration has proposed a regulation that it contends is intended to prevent the abuse of state disciplinary proceedings for political ends while preserving and codifying existing procedures that allow the Department of Justice to consider complaints against government lawyers while not preventing the states from pursuing their own procedures once DOJ’s review is completed.

If fact, a close reading of the regulation, the history of Congressional actions to prevent abuses of power by the Department of Justice, and a review of government misconduct since the beginning of the Trump Administration, demonstrates that the regulation provides the leadership of the DOJ a chancellors veto over any state investigation of allegations of government misconduct, particularly that misconduct committed by high ranking officials of the DOJ.

It is said that ignorance of the law is no excuse but it is precisely the ignorance of our elected officials, judges, and the public that the Trump Administration is counting upon to avoid close scrutiny of its innocuous sounding proposal.

As the reader will learn in more detail, there are four circumstances arising from the proposed regulation that will derail any meaningful review of allegations of ethical violation by government lawyers.

First. The regulation requires that a state which has received a complaint against a government lawyer or which has otherwise learned of alleged misconduct defer its investigation of the lawyer until the attorney’s conduct is investigated by various components of the DOJ. When that process is complete, the state can take whatever action it deems appropriate whether or not the Department has imposed its own discipline. This deferment is mandatory. If a state attempts to conduct a parallel investigation, the Department will take action to prevent it.[1]

However, there is no limit on the amount of time the various components can take to conduct their investigation, indeed no requirement that they ever reach a decision. Experience with government agencies demonstrates that if there is a will to prevent anything from being done, there is a way to ensure that nothing is done. Fundamentally, this fact alone demonstrates that there will no longer be state discipline of government lawyers no matter what their conduct is.

Second. The memorandum accompanying the proposed regulation relies upon the procedures the Department of Justice created post-Watergate to ensure that there would be meaningful and an unbiased internal review of allegations of misconduct committed by government lawyers.

What this memorandum does not state is that this scheme of review, the authorities that underly it, and entities that are intended to enforce it, and in particular, the lawyers who led the process and had the most experience in administering it, including lawyers appointed during Trump’s last administration, have left or been fired and have not been replaced.

This gives lie to any argument that the Trump Administration is committed to enforcing ethical norms. Indeed, the proposed regulation is designed to look like a robust enforcement mechanism while in fact being a mechanism to avoid any review of government misconduct at.

Third. The Trump Administration has stated openly that it is at war with the courts.[2] And it has demonstrated that it will do anything necessary to advance its interests whether it means lying to the courts or outright disobedience of court orders. It is therefore necessary that it quash any mechanism that might exist that would interfere with its lawyers having a free hand. The threat that a government lawyer might be disbarred if they engage in unethical means to achieve these goals could provide cover for lawyers who refuse to do so and discipline for supervisors who order line assistants to engage in unethical conduct or disobedience of court orders.

There is concrete evidence that the administration has engaged in a pattern of conduct intended to mislead judges or disobey judges who have ruled against them. This evidence comes directly from the statements of various judges, appointed by Democrat and Republican administration, even by President Trump, addressing what they believe was government misconduct in cases before them.

Fourth. The government relies on various authorities to support the proposed regulation which are either suspect or do not stand for the propositions advanced. These will be addressed in detail later in this report, but the most transparent example is the government’s repeated citation of itself to bolster its arguments. Essentially, this is nothing but an attempt to resuscitate Chevron deference which the Supreme Court overruled in Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 144 S. Ct. 2244 (2024).

Part 1

A Very Short History of Congressional Efforts

To Prevent Corruption of the Department of Justice for Political Ends

Donald Trump is not the first President to seek to use the Department of Justice to destroy his political enemies. That honor even predates Richard Nixon. But the shock of Watergate led to the first efforts to create an independent Department of Justice free from interference from political intervention. Those efforts were largely successful. A full discussion of that history is beyond the scope of this White Paper. A review of those efforts is detailed in an article published by the Brennan Center for Justice. [3]

However, to facilitate criminal investigations, the Department of Justice tried to stop efforts by state bar associations to hold government lawyers to the requirements of the rules of disciplinary conduct. In 1998, Congress enacted the McDade Amendment, 28 U.S.C. § 530B(a) in response to the Department of Justice’s claim that federal government lawyers were not bound by state ethics rules regarding contacting witnesses represented by counsel.[4] This law binds all federal government lawyers, including the Attorney General. See § 530B(c) (cross-referencing 28 C.F.R. § 77.2(a) (“The phrase attorney for the government means the Attorney General . . . .”).

The Amendment states:

(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.

(b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.

(c) As used in this section, the term “attorney for the Government” includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and also includes any independent counsel, or employee of such a counsel, appointed under chapter 40.

The Department of Justice sought to characterize the McDade Amendment as simply a codification of existing standards but for the most part DOJ did not challenge the practices that led to its enactment. And when it did, it was stopped dead cold by the courts

In three cases the Department challenged the authority of their state of bar to enforce its ethical rules against them for official conduct. The courts emphatically rejected those challenges. See In re Clark, 311 A. .3d 882, 887-889 (D.C. 2024) (citing the McDade Amendment); Matter of Howes, 940 P.2d 159, 169 (1997) (“Respondent has not cited and cannot point to any federal law which requires him to carry out his duties as an AUSA in an unethical manner or to any intent of Congress that he even be permitted to do so. To the contrary, the intent of Congress still appears to be that respondent and others in his position should adhere to the ethical standards prescribed by their licensing courts.”).

In United States v. Supreme Ct. of New Mexico, 839 F.3d 888, 923 (10th Cir. 2016), the United States argued that “state professional responsibility rule preempted by federal law, notwithstanding the McDade Act.”

The question in United States was whether a specific ethical provision applied to well established procedures before federal grand juries. The government argued the rule which prohibited “a prosecutor from subpoenaing a lawyer to present evidence about a past or present client in a grand-jury or other criminal proceeding unless such evidence is ‘essential’ and ‘there is no other feasible alternative to obtain the information,’” was preempted by the Grand Jury Clause of the United States Constitution. While the Court agreed that the rules was preempted in the context of the grand jury, the court reaffirmed its previous holding that the ethical provision was not preempted as applied to subpoenas issued pursuant to Federal Rule of Criminal Procedure 17. Id. at 930, a traditional prosecutorial function.

Once again, the Trump Administration seeks to ignore these decisions in the hope that no one will catch on to their evasions.

.

Part II

Past and Present Efforts to Evade the

McDade Amendment

The Department of Justice was never happy with the McDade Amendment and sought to dismiss it as just a codification of existing practice. That effort failed, but the Trump Administration now seeks to rely upon past DOJ statements post McDade to support the proposed regulation.

Those assertions then and now would nullify the protections Congress enacted. Indeed they are an absurd interpretation of the law. Congressional instruction to the DOJ to enact regulations to enforce this new law, could hardly have been intended to permit DOJ to enact regulations that would nullify the law. But that is precisely what the regulations would do.

Part III[5]

Unethical Conduct by Government Lawyers

Recognized by the Courts

On her first day as Attorney General (February 5, 2025), Ms. Bondi issued a memorandum to all Justice Department employees entitled General Policy Regarding Zealous Advocacy on Behalf of the United States. It states in part

It is the job of an attorney privileged to serve in the Department of Justice to zealously defend the interests of the United States. Those interests, and the overall policy of the United States, are set by the Nation’s Chief Executive, who is vested by the Constitution with all “[E]xecutive Power.” More broadly, attorneys are expected to zealously advance, protect, and defend their client’s interests. Department of Justice attorneys have signed up for a job that requires zealously advocating for the United States.

The responsibilities of Department of Justice attorneys include not only aggressively enforcing criminal and civil laws enacted by Congress, but also vigorously defending presidential policies and actions against legal challenges on behalf of the United States. The discretion afforded Department attorneys entrusted with these responsibilities does not include latitude to substitute personal political views or judgments for those that prevailed in the election.

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.

At the time, no one knew what this meant. The nation soon found out.

A. Kilmar Garcia Litigation

Kilmar Armando Abrego Garcia is an El Salvadoran citizen. He entered the United States around 2011.[6] In 2019, Immigration and Customs Enforcement (ICE) instituted removal proceedings against him. In response, Garcia sought a “withholding of removal” order preventing the United States from removing him to El Salvador. That order was issued in October 2019 after the immigration judge agreed it was more likely than not that Garcia would be persecuted by gangs if he were forced to return to his home country. The government did not appeal that order, so it became effective.

In March of this year, Mr. Garcia was detained by ICE and, without notice or legal process, flown to El Salvador and placed in the notorious “Terrorism Confinement Center” (CECOT).[7] On March 24, his family filed suit in federal district court in Maryland against several federal defendants, including the Secretary of Homeland Security and Ms. Bondi. They also sought an emergency temporary restraining order asking the court to order the defendants to request the government of El Salvador to return Mr. Garcia.

The government filed its response on March 31, arguing principally that the district court lacked jurisdiction for several reasons, and that it was not likely that El Salvador would respond positively to a request from the United States.[8] Critically, the response conceded that, “[o]n March 15, although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error.”[9]

At the April 4 hearing on the TRO motion, the government was represented by Erez Reuveni, the Acting Deputy Director of DOJ’s Office of Immigration Litigation and one of the DOJ lawyers who signed the March 31 response. As such, Mr. Reuveni had no option but to say at the outset, consistent with the Department’s March 31 response, “we concede the facts. This person should—the plaintiff, Abrego Garcia, should not have been removed.”[10] In an exchange with the court, he explained why: there was a withholding of removal order, now final, that forbade the government from returning Mr. Garcia to El Salvador. As a result, he acknowledged, “[t]here’s no dispute that the order could not be used to send Mr. Abrego Garcia to El Salvador.”[11] When the court pressed him on what document the government had relied upon to initiate Mr. Garcia’s removal in 2025, Mr. Reuveni again had no option but to concede [t]hat is not in the record, and the government has not put that into the record. And that’s the best I can do.”[12]

Similarly, Mr. Reuveni had to concede that the withholding of the removal order meant that, as a matter of law, Mr. Garcia could not be removed to El Salvador,[13] and that there was “no case directly on point to Your Honor’s question.”[14] The court thanked Mr. Reuveni, no less than three separate times, for his “candor.”[15] Mr. Reuveni did point out where there was a “dispute” between the parties,[16] and he argued at some length why the government believed the court had no jurisdiction in the case.[17]

And yet, the very next day, Deputy Attorney General Todd Blanche placed Mr. Reuveni on administrative leave for failing to “follow a directive from your supervisors,” “engaging in conduct prejudicial to your client” and not “zealously advocat[ing] on behalf of the United States.”[18] And the next day, Ms. Bondi appeared on “Fox News Sunday” and made it clear that Mr. Reuveni’s suspension was a direct consequence of her February 5 “zealous advocacy” memorandum:

He was put on administrative leave by Todd Blanche on Saturday. And I firmly said on Day 1, I issued a memo that you are to vigorously advocate on behalf of the United States. Our client in this matter was Homeland Security—is Homeland Security. He did not argue. He shouldn’t have taken the case. He shouldn’t have argued it, if that’s what he was going to do. He’s on administrative leave now. . . . You have to vigorously argue on behalf of your client.[19]

The Fox host, Shannon Bream, twice pointed out that “the government ha[d] admitted there was an error in deporting him.”[20] Neither time did Ms. Bondi dispute that assertion; nor did she explain how Mr. Reuveni could have done so. Rather, she simply said that Mr. Reuveni’s conduct “would be a defense attorney walking in conceding something in a criminal matter. That would never happen in this country.” [21]

Ten days later, Mr. Reuveni was fired by Mr. Bove at Ms. Bondi’s direction.[22] Mr. Blanche also suspended Mr. Reuveni’s immediate supervisor, August Flentje, for failure to supervise Mr. Reuveni.[23]

B. EPA Clean Energy Contract Investigation

Denise Cheung served for over 24 years in the Department of Justice and the U.S. Attorney’s Office in the District of Columbia.[24] She was most recently the Chief of the Criminal Division of that office. On February 17, 2025, the Department’s Office of the Deputy Attorney General (ODAG) (then headed by Mr. Bove in an acting capacity) instructed Ms. Cheung to open a criminal investigation into whether EPA had unlawfully awarded a clean energy project contract, and to issue grand jury subpoenas pursuant to the investigation. She was instructed to take that action by close of business that evening to prevent contract awardees from drawing down contract funds held by Citibank.

Ms. Cheung conferred with colleagues with substantial white collar criminal prosecution experience, reviewed documentation provided by ODAG, and concluded that the documents on their face did not provide the predicate for opening a criminal investigation. After much internal debate, ODAG said a “freeze letter” requesting that the bank freeze the funds would be adequate. Ms. Cheung contacted the FBI’s Washington Field Office to start that process. Ms. Cheung also viewed a Project Veritas video that ODAG claimed provided probable cause.

Ms. Cheung sent a draft freeze letter to the Principal Deputy U.S. Attorney for the District of Columbia (PAUSA). The PAUSA proposed inclusion of language stating that the government had probable cause to believe that contract funds held by the bank were subject to seizure and forfeiture. Ms. Cheung said the language was not appropriate, based on evidence she had reviewed. Ms. Cheung provided the FBI with alternative language that said “there may be conduct that constitutes potential violations of [the federal criminal code] that merits additional investigation.” The FBI issued the letter to Citibank at 7:28 pm.

The PAUSA and Interim U.S. Attorney Martin called Ms. Cheung shortly afterward, objecting to the language of the freeze letter and directing Ms. Cheung to immediately send a second letter to the bank, signed by herself and Mr. Martin, announcing the commencement of a criminal investigation and ordering the bank not to disburse any funds. Ms. Cheung responded that she continued to believe there was insufficient evidence to issue such a letter, including insufficient evidence to tell the bank there was probable cause to seize the accounts that had been identified. Because Ms. Cheung believed she did not have legal authority to send the letter, she told Mr.Martin she would not send it. Mr. Martin then asked for her resignation, which she submitted the following day.Mr. Martin then personally submitted an application for a seizure warrant, not signed by any other prosecutors in his office.[25] A U.S. magistrate judge rejected it on the grounds that the application (which included an affidavit from an FBI agent) failed to establish a reasonable belief that a crime had occurred. Mr. Bove then approached at least one other U.S. attorney’s office in the southeastern United States about launching a grand jury investigation of the same contract and seeking a court-ordered bank freeze, but prosecutors in that office also refused to do so.

C. Dismissal of Eric Adams Prosecution[26]

In September 2024, the Department indicted Eric Adams, the Mayor of New York City, on five counts arising from his alleged solicitation of illegal campaign contributions from foreign nationals. Shortly after the election, Mr. Adams and his defense team initiated contact with Trump staff and ultimately met with the President-Elect himself. On January 31, 2025, Mayor Adams’ counsel met with then-Acting Deputy Attorney General Bove and the prosecutors working on the case, led by Danielle Sassoon, the Acting U.S. Attorney for the Southern District of New York. At that meeting, as documented by Ms. Sassoon, the Mayor’s counsel indicated that he could be helpful to the Administration’s immigration enforcement priorities if he was no longer facing prosecution. Also, as reported by Ms. Sassoon in her resignation letter, Mr. Bove “admonished a member of my team who took notes during that meeting and directed the collection of those notes at the meeting’s conclusion.”[27]

On February 10, Mr. Bove sent a memorandum to Ms. Sassoon, stating that he was acting pursuant to the authorization of the Attorney General. The memorandum instructed her to dismiss the indictment after obtaining Mr. Adams’ consent to dismissal of the indictment without prejudice to it being refiled. Mr. Bove’s memorandum provided two grounds for dismissal: (1) doing so would enable Mr. Adams to assist in immigration enforcement; and (2) Damian Williams, Ms. Sassoon’s predecessor, improperly “weaponized” the prosecution. Mr. Bove’s memorandum also stated that the decision to dismiss had been reached without consideration of the merits of the prosecution.

Ms. Sassoon wrote Ms. Bondi on February 12 to request a meeting and express her grave misgivings about this memorandum. She expressed concern that the agreement with Mayor Adams to consent to dismissal had been “negotiated without my office’s awareness or participation.” She explained that offering to drop a prosecution in exchange for a promise of assistance violated the Department of Justice Manual and the Rules of Professional Conduct, and would constitute prosecutorial misconduct. She also explained that Mr. Williams had very little involvement in the investigation, that the decision to indict originated with career staff, and that Mr. Williams’ public statements were typical for a U.S. Attorney. “Moreover,” she added, “dismissing without prejudice and with the express option of again indicting Adams in the future creates obvious ethical problems, by implicitly threatening future prosecution if Adams’s cooperation with enforcing the immigration laws proves unsatisfactory to the Department.”

Ms. Sassoon said “I am mindful of your recent order reiterating prosecutors’ duty to make good-faith arguments in support of the Executive Branch’s positions. See Feb. 5, 2025 Mem. ‘General Policy Regarding Zealous Advocacy on Behalf of the United States.’ But because I do not see any good-faith basis for the proposed position, I cannot make such arguments consistent with my duty of candor.” She offered to resign if Ms. Bondi chose not to meet with her or to reevaluate the dismissal directive.

Mr. Bove responded on February 13, “accepting” Ms. Sassoon’s resignation and placing the two lead prosecutors on administrative leave, pending an investigation of all three attorneys’ “insubordination” by the Office of Attorney General and the Department’s Office of Professional Responsibility.[28] The letter quoted from the “zealous advocacy” memorandum and added: “Your Office was not exempted from . . . the Attorney General’s memorandum.” That same day, Mr. Bove transferred the Adams prosecution from the office of the U.S. Attorney for the Southern District of New York to the Department’s Public Integrity Section. The two leaders of the Public Integrity Section and three other lawyers there promptly resigned rather than participate in dismissing the case.

Ms. Sassoon resigned on February 14, along with one of the two lead prosecutors.[29] Also that day, Mr. Bove held a conference call with the remaining lawyers in the Public Integrity Section, stating that two of them would need to sign the dismissal motion—or it was strongly implied, they would all be fired. He gave them one hour to decide. A senior Section lawyer offered to sign the motion “to protect the other lawyers,” and it was ultimately filed that day with the additional signatures of Mr. Bove himself and the then head of the Department’s Criminal Division.

On April 22, three of the prosecutors who had been placed on administrative leave resigned. They explained that Mr. Blanche, newly appointed as the Deputy Attorney General, had conditioned their return to service on expressing regret and admitting misconduct in connection with refusing to dismiss the Adams case. They resigned rather than “abdicate our legal and ethical obligations in favor of directions from Washington.”[30]

On April 2, Judge Dale Ho reluctantly dismissed the indictment, although he did so with prejudice, declaring that “everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions.”[31] Judge Ho also rejected the Department’s claims of misconduct by Southern District prosecutors: “There is no evidence—zero—that they had any improper motives.”[32]

D. Numerous Cases Where Courts Stated that the Trump Administration had Failed to be Candid, Evaded Answering the Courts Questions, Lied to the Court, and Disobeyed Court Orders.

Georgetown Professor and a team of associates conducted a review of allegations of government misconduct and obtained transcripts from those matters where the judges made findings. Their findings were published in an issue of Just Security.[33]

What follows is a list of some of the cases discussed. For the convenience of the reader, the number next to each paragraph is the number for the paragraph they will find in the report.

Chapter Two, beginning p. 49.

3. Providing “highly misleading, if not intentionally false” sworn declaration to the court; “so disingenuous that the Court is left with little confidence that the defense can be trusted to tell the truth about anything.” Judge Amy Berman Jackson (Obama appointee), National Treasury Employees Union v. Vought, 1:25-cv-00381 (D.D.C.).

4. “Defendants’ plea for a presumption of good faith rings hollow when their own actions contradict their representations.” Judge Loren L. Alikhan (Biden appointee), National Council of Nonprofits v. Office of Management and Budget, 1:25-cv-00239-LLA (D.D.C.)

5. Providing false sworn declarations about “hotly contested” material fact; “The Court was given false information, upon which it relied, twice, to the detriment of a party at risk of serious and irreparable harm.” Judge Brian E. Murphy (Biden appointee), D.V.D. v. U.S. Department of Homeland Security, 1:25-cv-10676 (D. Mass.)

6. Providing the court with “the sorriest statement I’ve ever seen;” “This is a terrible, terrible affidavit. If this were before me in a criminal case and you were asking to get a warrant issue on this, I’d throw you out of my chambers.” Judge Leonie M. Brinkema (Clinton appointee), Sanchez Puentes v. Charles, 1:25-cv-00509 (E.D. Va.)

7. “This Court takes clear offense to Respondents wasting judicial resources to admit to the Court it has no evidence;” “contradict[ing] themselves throughout the entire record;” providing “shoddy affidavits and contradictory testimony.” Judge David Briones (Clinton appointee), Sanchez Puentes v. Garite, 3:25-cv-00127 (W.D. Tex.).

8. (b) Government submitted “underinclusive” RIF figures in response to the court’s order; three declarations claiming months of background work on potential RIF plans were deemed contrary to the “factual record” Judge Susan Illston (Clinton appointee), American Federation of Government Employees, AFL-CIO v. Trump, 3:25-cv-03698 (N.D. Cal.) and American Federation of Government Employees, AFL CIO v. United States Office of Management and Budget, 3:25-cv-08302 (N.D. Cal.) (related cases).

9. “Flip-flopping—in sworn declarations—rais[ing] severe concern,” “consistently refused to give … the full story,” providing “cagey answers,” “omitting key information,” and “repeated[ ] represent[ations]” that “strain credulity.” Judge Royce C. Lamberth (Reagan appointee), Abramowitz. v. Lake,1:25-cv-00887 (D.D.C.) and Widakuswara. v. Lake, 1:25-cv-01015 (D.D.C.) (related cases).

10. “The ‘administrative record’ submitted by the government is a sham. It does not facilitate judicial review: It frustrates it;” judge calls out government for “lie” in termination letters, and for DOJ preventing testimony because “afraid … would reveal the truth.” Judge William Alsup (Clinton appointee) American Federation of Government Employees, AFL-CIO v. United States Office of Personnel Management, 3:25-cv-01780 (N.D. Cal.).

11. (a) DOJ counsel in transgender military ban warned for treating the judge “like… an idiot” and attempting to “gasli[ght]” her. Judge Ana Reyes (Biden appointee), Talbott v. Trump, 1:25-cv-00240 (D.D.C.).

12. Providing false and incomplete information concerning DOGE’s leadership and authorities. Judge Theodore D. Chuang (Obama appointee), J. Doe 4 v. Musk, 8:25-cv-00462 (D. Md)( Defense counsel is reminded of their duty to make truthful representations to the court). Judge Tanya Chutkan (Obama appointee), New Mexico v. Musk, 1:25-cv-00429 (D.D.C.). Judge Kollar-Kotelly (Reagan appointee; Clinton appointee), Alliance for Retired Americans v. Bessent, 1:25-cv-00313 (D.D.C.).

13. Failing to “to offer any explanation, let alone one supported by the record;” court saying “can’t get a straight answer from you.” Judge Amir H. Ali (Biden appointee), AIDS Vaccine Advocacy Coalition v. U.S. Department of State, 1:25-cv-00400 (D.D.C.) and Global Health Council v. Trump, 1:25-cv-00402 (D.D.C.).

16. Making “patently incredible” claims; Government “switching arguments at will,” a “totally inconsistent” case; and Government witness “knows nothing … less than nothing.” Judge Paula Xinis (Obama appointee),Abrego Garcia v. Noem, 8:25-cv-00951 (D. Md.)

17. Providing an “explanation [that] is riddled with inconsistencies” Judge Jeanette A. Vargas (Biden appointee), State of New York v. Trump, 25-cv-01144 (S.D.N.Y.).

18. Making representation that “does not reflect the level of diligence the Court expects from any litigant—let alone the United States Department of Justice;” “The contradiction between [Government’s] factual representations and the facts on the ground is particularly striking.” Judge Colleen Kollar-Kotelly Clinton appointee), League of United Latin American Citizens v. Executive Office of The President, 1:25-cv-00946 (D.D.C.), Democratic National Committee v. Trump, 1:25-cv-00952 (D.D.C.), and League of Women Voters Education Fund v. Trump, 1:25-cv-00955 (D.D.C.) (consolidated cases)

19. Unrebutted claim that the government created a record as a “contrivance” to avert court ruling. Judge Stephanie A. Gallagher (Trump appointee) J.O.P. v. DHS, 8:19-cv-01944-SA (D.Md.).

20. Offering an “official justification … [that] is not plausible.” Judge Dabney L. Friedrich (Trump appointee), National Endowment for Democracy v. United States, 1:25-cv-00648 (D.D.C.).

21. Admission of making a false statement to the court. Judge Timothy James Kelly (Trump appointee), L.G.M.L v. Noem, 1:25-cv-02942 (D.D.C.)

22. ICE mask testimony deemed “disingenuous.”Judge William G. Young (Reagan appointee), American Association of University Professors v. Rubio 1:25-cv-10685 (D. Mass).

23. ICE statistics “concealed more than they disclosed, despite the availability … of much more illuminating data” and “gives no confidence that the defendants are seriously interested in making a full disclosure” Judge Lewis A. Kaplan (Clinton appointee), Barco Mercado v. Noem, 1:25-cv-06568 (S.D.N.Y.).

24. (a) President’s determination to federalize National Guard to Portland “simply untethered to the facts” and not “conceived in good faith.” Judge Karin J. Immergut (Trump appointee), State of Oregon v. Trump, 3:25-cv-01756 (D. Or.).

25. The “perceptions” of three government declarants “are not reliable,” and their declarations contain “unreliable information” that reflects “a potential lack of candor” and “call[s] into question their ability to accurately assess the facts.” Judge April M. Perry (Biden appointee), Illinois v. Trump, 1:25-cv-12174 (N.D. Ill.).

26. Affidavit supporting criminal complaint told a “largely fictional” story of the stop, including “blatant misstatements;” AUSA conceded the affidavit “misrepresented what was going on;” Judge Xavier Rodriguez (W. Bush appointee), United States v. Jaime Alberto Quintanilla-Chavez, 5:25-CR-388 (W.D. Tex.).

27. DHS/ICE “inaccurately describ[ing] the facts,” advancing a “decidedly incorrect” account of events, and “‘incorrectly describ[ing] the procedural posture of the case’” in immigration detention habeas case. Judge Leo T. Sorokin (Obama appointee), Shinwari v. Hyde, 1:25-cv-12021 (D. Mass.)

28. “Court does not credit” ICE official’s “assertion” of § 1225(b)(2)(A) detention because it is “contradicted by the Notice of Custody Determination.” Judge Julia E. Kobick (Biden appointee), Gomes v. Hyde, 1:25-cv-11571 (D. Mass.)

29. “Court cannot credit” DHS/ICE’s post-hoc “new position … raised for the first time in this litigation” asserting § 1225(b) immigration detention, given “the record is devoid of any reference to § 1225” and “indisputable” evidence of § 1226 treatment. Judge Dale E. Ho (Biden appointee), Lopez Benitez v. Francis, 1:25-cv-05937 (S.D.N.Y.).

30. “Court cannot credit” DHS/ICE’s post-hoc claim that immigration detention fell under § 1225(b)(2)(A), “despite clear indication” the detention was not under that statute. Judge Brandy R. McMillion (Biden appointee), Lopez-Campos v. Raycraft, 2:25-cv-12486 (E.D. Mich.)

31. ICE Deputy Field Director declaration “contradicted pretty thoroughly” by migrants. Judge Robert W. Gettleman (Clinton appointee), Moreno Gonzalez v. Noem, 1:25-cv-13323, (N.D. Ill.)

32. DOT’s “nakedly misleading characterization” of immigration-enforcement grant conditions. Chief Judge John J. McConnell, Jr. (Obama appointee), State of California v. United States Department of Transportation, 1:25-cv-00208 (D.R.I.)

34. CBP Commander “admitted that he lied;” CBP/ICE/DHS portrayal of Chicago unrest lacked credibility, “belie[d]” by own evidence; “Overall, this calls into question everything that defendants say they are doing” Judge Sara Lee Ellis (Obama appointee), Chicago Headline Club v. Noem, 1:25-cv-12173 (N.D. Ill.).

35. USDA’s assertion it could do “nothing more” to act “expeditiously” on November SNAP benefits “carries no weight.” Chief Judge John J. McConnell, Jr. (Obama appointee), Rhode Island State Council of Churches v. Rollins, 1:25-cv-00569 (D.R.I.).

36. USDA’s Nov. 8 SNAP letter calling States’ actions “unauthorized” was “untethered to the factual record” and government “conceded” notice was “erroneous on its face ” Judge Indira Talwani (Obama appointee), Commonwealth of Massachusetts v. United States Department of Agriculture, 1:25-cv-13165 (D. Mass.)

Point IV

The Government’s Citation to Authorities is Either Incomplete, Inaccurate, Misleading, False, or Findings in Decisions of the Supreme Court of the United States

The argument advanced by the Trump Administration ignores decisions by the Supreme Court of the United States that refute its bottom line position that its authority to regulate the conduct of its attorneys is superior to that of the states. This is what the Supreme Court said:

Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers.

Leis v. Flynt, 439 U.S. 438, 442 (1979). This is a powerful a articulation of an originalist repudiation of the government’s position. Full stop.

In Goldfarb v. Va. State Bar, 421 U.S. 773 (1975), the Supreme Court of the United State recognized the critical role states play in enforcing the lawyer’s obligations as officers of the court:

The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been “officers of the courts.” See Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379, 383 (1963); Cohen v. Hurley, 366 U.S. 117, 123-124 (1961); Law Students Research Council v. Wadmond, 401 U.S. 154, [*793] 157 (1971).

Id. at 792.

The government’s failure to acknowledge Leis and Goldfarb, is a further comment on the extent to which the government is willing to go to fool all the people all of the time. But as President Lincoln once pointed out, can’t be done.

In addition to ignoring these pronouncement by the SUPREME COURLT OF THE UNITED STATES, it asserts that it’s own interpretation of McDade constitutes authority that can be relied upon. Thus, it interprets McDade to provide it with superior authority to determine whether its lawyers have acted unethically.

This is not only contrary to plain intent of the Amendment to stop the Department of Justice’s from determining for itself what ethical rules to follow, it is contrary to the very text of the statute itself, which the government seeks to avoid by claiming that it is ambiguous. This a bizarre argument, asserted as if the United States were unaware of its victory in Loper Bright Enterprises v. Raimondo, supra.

Point V

The Administration’s Contention that Existing Department of Justice Components Provide Robust Mechanisms to Ensure that Lawyers Engaged in Misconduct Are Disciplined is a Chimera

The Trump Administration contends:

The Department has long been committed to upholding the highest standards of ethics among its attorneys. On October 21, 1998, the President signed the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681. Division A, section 801 of that statute, also known as the McDade Amendment, is enacted at 28 U.S.C. 530B and became effective on April 19, 1999. See generally Charles Doyle, Cong. Rsch. Serv., RL30060, McDade-Murtha Amendment: Ethical Standards for Justice Department Attorneys. It does not apply to attorneys in Federal government agencies other than the Department, unless they are appointed as Special Assistant United States Attorneys. See id.c[34]

While this was true in the past, it is manifestly not true today.

Previously the Department of Justice’s Office of Professional Responsibility (OPR) would review allegations of misconduct by Department lawyers. Where ere an OPR investigation concluded with a finding of intentional misconduct and that finding is approved by the Deputy Attorney General, OPR’s practice is to notify the relevant state bar. See U.S. GOV’T ACCOUNTABILITY OFF., GAO-00-187, DEPARTMENT OF JUSTICE: INFORMATION ON THE OFFICE OF PROFESSIONAL RESPONSIBILITY’S OPERATIONS (2000). It is also unclear whether OPR is even functional at the moment.

These components still exist, but are not functioning.

AG Bondi fired the head of the Department’s Office of Professional Responsibility (“OPR”), Jeffrey Ragsdale, in early August. OPR handles internal ethics investigations. Despite the fact that Mr. Ragsdale was ousted more than seven months ago, OPR’s website does not identify anyone as having replaced him as head of the Office. All it states under the heading “Leadership” is “Counsel”.

Former Acting Deputy Attorney General Emil Bove installed two political appointees at OPR, with no prior DOJ experience, to make final determinations on adverse personnel actions, bar referral matters, and ethics recusals and waivers. Its budget for FY 2026 was cut by 26%.

Stacy Ludwig, formerly the Director of the Department’s Professional Responsibility Advisory Office, left her position at the Department of Justice in March. The purpose of this Office is “The mission of the Professional Responsibility Advisory Office (PRAO) is to ensure prompt, consistent advice to Department attorneys and Assistant United States Attorneys with respect to professional responsibility and choice-of-law issues.” justice.gov/prao.

Conclusion

The Trump Administration relies on components and practices followed by prior Administrations—including its own first administration—that in fact it has actively worked to destroy. It hopes that if it tells a lie often enough, and loud enough, it will be sufficient to fool to just enough people to put this measure into effect. We say, ENOUGH!

APPENDIX

Text of Proposed Regulation

Revise § 77.1 to read as follows:

§ 77.1 Purpose and authority.

(a) The Department of Justice is committed to ensuring that its attorneys perform their duties in accordance with the highest ethical standards. The purposes of this part are to implement 28 U.S.C. 530B, to provide guidance to attorneys concerning the requirements imposed on Department attorneys by 28 U.S.C. 530B, and to fulfill the Attorney General’s obligation to assure Department attorneys comply with these requirements.

(b) Section 530B requires Department attorneys to comply with state and local federal court rules of professional responsibility but should not be construed in any way to alter federal substantive, procedural, or evidentiary law or to interfere with the Attorney General’s authority to send Department attorneys into any court in the United States.

(c) Section 530B imposes on Department attorneys the same rules of professional responsibility that apply to non-Department attorneys, but should not be construed to impose greater burdens on Department attorneys than those on non-Department attorneys or to alter rules of professional responsibility that expressly exempt government attorneys from their application.

(d) Section 530B requires the Attorney General to assure Department attorneys comply with applicable rules of professional responsibility.

(e) The regulations set forth in this part provide guidance to Department attorneys in determining the rules with which such attorneys should comply.

(f) The regulations set forth in this part establish a process for the Attorney General or her designee to review bar complaints and allegations against Department attorneys.

§ 77.5 [Redesignated as § 77.6]

Redesignate § 77.5 as § 77.6.

Add new § 77.5 to read as follows:

§ 77.5. Review of state bar complaints and allegations against current and former attorneys for the government.

(a) Before the bar disciplinary authorities of the States, the Territories, or the District of Columbia undertake any investigative steps that seek information or otherwise require participation from an attorney for the government in response to allegations that a current or former attorney for the government violated a rule of ethical conduct while engaging in that attorney’s duties for the Department, the Attorney General shall have the right to review the allegations in the first instance. The Attorney General shall have this right whether the allegations are made in a complaint filed by a third party or the bar disciplinary authorities open an investigation into the allegations without a complaint. The Attorney General or her designee shall notify the appropriate bar disciplinary authorities whether she intends to exercise her right to review the allegations and, if she does, she or her designee shall request that the bar disciplinary authorities suspend any parallel investigations or disciplinary proceedings until the completion of the review. If the Attorney General decides not to complete her review, she or her designee shall notify the appropriate bar disciplinary authorities so they may resume their investigations or disciplinary proceedings. The Attorney General or her designee shall inform the appropriate bar disciplinary authorities of the completion of her review. As appropriate, the Attorney General or her designee shall also inform the appropriate bar disciplinary authorities of the results of her review, including if the review finds that the attorney for the government did not violate any rule of ethical conduct while engaging in that attorney’s duties.

(b) Should the relevant bar disciplinary authorities refuse the Attorney General’s request, the Department shall take appropriate action to enforce this regulation or to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations.

[1] “If finalized as proposed, whenever a third party files a bar complaint alleging that a current or former Department attorney violated an ethics rule while engaging in that attorney’s duties for the Department, or whenever bar disciplinary authorities open an investigation into such allegations without a complaint having been filed, the Attorney General will have the right to review the complaint and the allegations in the first instance.”

[2] Deputy Attorney General Todd Blanche stated at the Annual Convention of the Federalist Society that the government is at war with “activist rogue judges.”

43:04 to 44:37.

[3] Joe Gaeta, The Department of Justice’s Broken Accountability System, October 20, 2025 https://www.brennancenter.org/our-work/research-reports/department-justices-broken-accountability-system.

[4] See Levin, Leslie C., The Use of State Discipline to Sanction Attorneys General and Other High-Ranking Legal Officers (November 15, 2025). Available at SSRN: https://ssrn.com/abstract=5753303 or http://dx.doi.org/10.2139/ssrn.5753303; Nina Marino and Richard Kaplan, Moving Towards a Meaningful Limitation on Wrongful Prosecutorial Contact with Represented Parties, 4 PUB. INT. L. REV. 36 (1999); Stephen Gillers, Because They Are Lawyers First and Foremost: Ethics Rules and Other Strategies to Protect the Justice Department from a Faithless President, 57 GA. L. REV. 163, 199-200 (2022).

[5] Part III previously appeared in the Complaint filed against Attorney General Pamela Jo Bondi filed with The Florida Bar and was written by a team of lawyers including Professor Ellen C. Yaroshefsky, Jamie Conrad, Stephen Marcus, John T. Montgomery, and Professor Abbe Smith.

[6] All the factual statements in this and the following paragraph are drawn from the complaint in Abrego Garcia v. Noem, 8:25-cv-00951, (D. Maryland Mar. 24, 2025) ECF No. 1.

[7] Abrego Garcia v. Noem, 8:25-cv-00951, (D. Maryland Apr 06, 2025) ECF No. 31, at 1.

[8] Abrego Garcia v. Noem, 8:25-cv-00951, (D. Maryland Mar. 31, 2025) ECF No. 11. The Department’s opposition was signed by Yaakov M. Roth, Acting Assistant Attorney General – Civil Division, Mr. Reuveni, and Christopher I. Pryby, Trial Attorney, Office of Immigration Litigation.

[9] Hr’g Tr. No. 8:25-cv-00951, 19 (D. Maryland Apr. 4, 2025) (on file with the author).

[10] Id. at 21.

[11] Id. at 25.

[12] Id. at 21.

[13] Id. at 23-25.

[14] Id. at 28.

[15] Id. at 20, 35-36, and 50.

[16] Id. at 40-41.

[17] Id. at 42-49.

[18] Glenn Thrush, Justice Dept. Accuses Top Immigration Lawyer of Failing to Follow Orders, NEW YORK TIMES (Apr. 5, 2025), https://www.nytimes.com/2025/04/05/us/politics/justice-dept-immigration-lawyer-leave.html?searchResultPosition=7.

[19] Video posted by Fox News (@FoxNews), FACEBOOK, AG Pam Bondi accuses district court judges of playing ‘whack-a-mole’ (Apr. 6, 2025), https://www.facebook.com/FoxNews/videos/ag-pam-bondi-accuses-district-court-judges-of-playing-whack-a-mole-with-anti-tru/672899485221131/

[20] Id.

[21] Id. In fact, Rule 4-3.3 applies equally in civil and criminal cases, except where a client in a criminal case insists on

presenting false testimony. See R. Regulating Fla. Bar 4-3.3(b). That is obviously inapplicable to Mr. Reuveni.

Also, Ms. Bondi’s statement that a defense attorney would never “concede something in a criminal matter” isincorrect. Criminal defense attorneys often concede facts or points of law if they are undisputed and it is in the interest of their client to do so.

[22] See Glenn Thrush, As White House Steers Justice Dept., Bondi Embraces Role of TV Messenger, N.Y. TIMES (May 12, 2025), https://www.nytimes.com/2025/05/12/us/politics/pam-bondi-trump-justice-dept.html?smid=url-share.

[23] Thrush, supra note 18.

[24] The facts in this section are drawn from Read the resignation letter by Denise Cheung, a veteran D.C. federal prosecutor, WASH. POST (Mar. 6, 2025), https://www.washingtonpost.com/dc-md-va/2025/02/18/read-resignation-letter-denise-cheung/.

[25] The facts in this paragraph are drawn from Spencer S. Hsu, Maxine Joselow & Nicolás Rivero, FBI takes up EPA probe amid pushback from judge, prosecutors, WASH. POST (Feb. 27, 2025), https://www.washingtonpost.com/dc-md-va/2025/02/27/trump-fbi-epa-grant-investigation/.

[26] Except as otherwise noted, the facts in this section are drawn from Lola Fadulu & Alyce McFadden, A Timeline of Eric Adams’s Indictment, and What Came Next, N.Y. TIMES (Apr. 2, 2025), https://www.nytimes.com/article/eric-adams-indictment-timeline.html; Letter from Danielle Sassoon, Fmr. U.S. Att’y S.D. N.Y. to Pamela Bondi, U.S. Att’y Gen. (Feb. 12, 2025) (on file with the author); Read the letter from Emil Bove accepting Danielle Sassoon’s resignation, N.Y. TIMES (Feb. 13, 2025), https://www.nytimes.com/interactive/2025/02/13/nyregion/memo-from-bove-1.html; and E-mail from Hagan Scotten, Asst. U.S. Att’y S.D. N.Y. to Emil Bove, Princ. Assoc. Dep. U.S. Att’y Gen. (on file with the author).

[27] Letter, supra note 26, at 3.

[28] Read the letter from Emil Bove accepting Danielle Sassoon’s resignation, supra note 36, at 1-2 and 5. Mr. Bove placed Hagan Scotten and Derek Wikstrom on administrative leave. Two other prosecutors, Celia Cohen and Andrew Rohrbach, were also placed on leave sometime later.

[29] The resignation email that the lead prosecutor, Mr. Scotten, sent to Mr. Bove is particularly scathing:

No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy

objectives. . . . [O]ur laws and traditions do not allow using the prosecutorial power to influence othercitizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing togive him that advice, then I expect you will eventually find someone who is enough of a fool, orenough of a coward, to file your motion. But it was never going to be me. E-mail, supra note 26, at 1.

[30] Jonah Bromwich & William Rashbaum, Adams Case Prosecutors Resign Rather Than Express Regret to Justice Dept., N.Y. TIMES (Apr. 22, 2025), https://www.nytimes.com/2025/04/22/nyregion/eric-adams-prosecutors-resign.html.

[31] Read the ruling dismissing corruption charges against Eric Adams, N.Y. TIMES (Apr. 2, 2025), https://www.nytimes.com/interactive/2025/04/02/nyregion/adams-charges-dismissed-ruling.html

[32] Id., slip op. at 2.

[33] Ryan Goodman, Siven Watt, Audrey Balliette, Margaret Lin, Michael Pusic and Jeremy Venook, The “Presumption of Regularity” in Trump Administration Litigation, November 20, 2025, https://www.justsecurity.org/120547/presumption-regularity-trump-administration-litigation/

[34] The assertion that McDade is limited to lawyers working for the Department of Justice is without support, other than the government’s wishful thinkings. It contrary to the express language of the statute as any textualist would recognize.

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The Trump administration is waging an unprecedented campaign to subordinate the Department of Justice to presidential will. Over the past nine months, hundreds of experienced career prosecutors have resigned or been fired. Attorney General Pamela Jo Bondi has warned that lawyers who decline to vigorously defend the Administration’s policies based on their own ethical or legal judgment face termination. Deputy Attorney General Todd Blanche has declared the government “at war” with judges who rule against it.

The results are visible in courtrooms across the country. Federal judges—including Trump appointees—have admonished government lawyers for misleading statements, evasive answers, and outright disobedience of court orders. The internal mechanisms that once ensured compliance with ethical norms have been dismantled.

This Article proposes a remedy. Federal district courts possess the authority—under Federal Rules of Civil Procedure 83 and Criminal Procedure 5(f) and 57(b)—to issue formal orders at the outset of litigation. These orders should notify all counsel, and their supervisors, that they remain bound by state ethical rules, including the duty of candor, and that violations will result in personal sanctions, bar referrals, or contempt proceedings. This approach requires no new legislation. It demands only that courts use existing tools to preserve the integrity of proceedings before them.

II. The Legal Framework

A. The McDade Amendment

The McDade Amendment, 28 U.S.C. § 530B, provides that government attorneys “shall be subject to State laws and rules . . . governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” Congress enacted this statute to foreclose DOJ’s prior efforts to exempt its lawyers from ethical rules binding all other practitioners. The statute applies to every government lawyer, including the Attorney General.

B. The Model Rules of Professional Conduct

Every jurisdiction has adopted rules derived from the ABA Model Rules. Two provisions are central here. Model Rule 3.3 prohibits lawyers from making false statements of fact or law to a tribunal or offering evidence they know to be false. Model Rule 8.4 defines professional misconduct to include dishonesty, fraud, deceit, or misrepresentation, and—critically—prohibits lawyers from inducing another to violate the rules or doing so through the acts of another. Supervisors who pressure subordinates to mislead courts are themselves subject to discipline.

C. Existing Procedural Authority

Federal Rule of Criminal Procedure 5(f), enacted as part of the Due Process Protections Act of 2020, requires district courts to issue an order at the first appearance in every criminal case confirming the prosecutor’s disclosure obligations under Brady v. Maryland and the consequences of violation. This model demonstrates that prophylactic orders reminding counsel of existing obligations are both permissible and effective.

Federal Rule of Civil Procedure 83(b) and Criminal Procedure 57(b) authorize judges to “regulate practice in any manner consistent with federal law” provided the alleged violator receives actual notice. Courts thus possess independent authority to issue orders reminding counsel of their ethical duties and the consequences of breach.

III. Evidence of Systemic Misconduct

A November 2025 report by Just Security documented numerous instances of judicial criticism of government lawyers. The Brennan Center for Justice has catalogued the dismantling of DOJ’s internal accountability mechanisms. Several cases illustrate the pattern.

Disobedience of Court Orders. In J.G.G. v. Trump (D.D.C.), Chief Judge James Boasberg found probable cause of criminal contempt after the administration launched deportation flights during a hearing and in defiance of written orders. He described “increasing obstructionism” and “deliberate” and “gleeful” defiance. In the Abrego Garcia litigation, Judge Paula Xinis has signaled contempt proceedings may follow after the government claimed it could not influence El Salvador to return a man it had unlawfully deported—despite having arranged his detention there by agreement.

Misrepresentation. In L.G.M.L. v. Noem (D.D.C.), the government attempted to deport unaccompanied Guatemalan minors over Labor Day weekend. DOJ counsel told the court the children were being returned at their families’ request. After Guatemala’s Attorney General disputed this, a junior official appeared to withdraw the claim, acknowledging the government had no supporting evidence. Judge Timothy James Kelly (a Trump appointee) issued a preliminary injunction.

In United States v. Talbot (D.D.C.), the government defended a ban on transgender military service by citing studies that, Judge Ana Reyes found, said the opposite of what the government claimed. She wrote that the government’s summaries were “inexplicably misleading” and that “no one summarizing [the sources] in good faith could draw these conclusions.” At a hearing, she accused the government of treating her “like an idiot” and attempting to “gaslight” her.

Retaliation for Candor. Government attorney Erez Reuveni was praised by Judge Xinis for his candor in the Abrego Garcia case. The next day, Deputy AG Blanche placed him on administrative leave for failing to follow supervisory directives and not “zealously advocating” for the United States. As the Fourth Circuit observed in a concurrence, “the duty of zealous representation is tempered by the duty of candor to the court . . . and the duty to uphold the rule of law, particularly on the part of a Government attorney.”

IV. The Proposal

At the initiation of any civil or criminal case, the district court should issue a written order, affirmed orally, informing all parties that:

1. All counsel are bound by the rules of professional conduct of the state in which they are licensed and the state in which they are practicing, pursuant to 28 U.S.C. § 530B.

2. Supervisory attorneys who instruct, encourage, or induce counsel to violate these rules are themselves subject to discipline under Model Rule 8.4(a).

3. Violations may result in sanctions, referral to the state bar or disciplinary committee, or contempt proceedings.

4. Counsel of record must provide a copy of this order to any attorney supervising them; government lawyers must provide a copy to the head of their office or section.

Defense counsel and civil litigants should file motions requesting such orders, supported by memoranda documenting the pattern of misconduct and the legal authority for judicial action. If counsel are concerned that such motions will damage their relationship with opposing counsel, they may petition the Chief Judge for a local rule amendment or seek mandatory ethics training requirements that emphasize supervisory liability.

V. Anticipated Objections

Some may argue that such orders are unnecessary because ethical rules already bind lawyers. But Attorney General Bondi has told DOJ lawyers that their “personal political views or judgments”—including their ethical judgments—must yield to the Administration’s litigation objectives. A judicial order counteracts this pressure by making clear that the court, not the executive branch, will hold lawyers accountable for misconduct in its proceedings.

Others may view such orders as judicial overreach. But Rule 5(f) already requires courts to issue prophylactic orders regarding Brady obligations. Extending this approach to ethical duties generally is a modest step, grounded in existing procedural rules and the court’s inherent authority to regulate practice before it.

VI. Conclusion

The disbarment of Rudy Giuliani and the pending proceedings against Jeffrey Clark demonstrate that bar discipline can reach lawyers who abuse the legal system for political ends. But those proceedings take years. Courts need tools they can deploy now, in real time, to deter misconduct before it occurs and to hold supervisors accountable when it does.

The Department of Justice’s client is not the President. It is the United States of America, and its lawyers’ loyalty belongs to the Constitution and the laws they are sworn to enforce. Federal courts must remain a forum where the rule of law prevails over political coercion. The orders proposed here would help ensure they do.

This white paper was written by Jon May, Amicus Chair, for Lawyers for the Rule of Law (LFRL.org), a not-for-profit organization organized to protect the foundation of our democracy and protect us all from autocracy. Daniel Arshack, President.

Posted in: Law Practice, Philosophy and Ethics

Tags: Department of Justice, legal ethics

Jon May

Jon May is a criminal defense attorney and former federal prosecutor.

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“Just fighting the Trump Administration around the country.”

“Our country is going to be just fine. We got through Jim Crow, the Vietnam War. I am an optimist.”

“That’s because we come from different places. My family perished at Auschwitz. I never thought I would be saying this to a federal judge, but you’re being naive. Tell me, your Honor, what year is this?”

“ah, 2025”

“No it’s 1938. People just don’t know it yet.”

“You're just making things worse than they are.”

“No, I am trying to keep things from getting worse, and so are a lot of other people.”

That was it. He wished me luck. We shook hands and we parted.

So, readers.

Do you think that I am making things worse than they are?

If not, if you are not already involved in this fight, the bell tolls for you.

Believe it or not. This conversation was not recorded, but it is word-for-word how I remember it. If you are a lawyer and want to take part in litigation to preserve the rule of law, consider joining Lawyers for the Rule of Law. Lfrl.org.

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Supreme Court of Florida

SC2025-1020

Jon May,

Petitioner

vs.

The Florida Bar,

Respondent.

___________________________________________________________

Request for Oral Argument

In my last appearance before this Court in 1982, the Court agreed with my argument that my client was entitled to discovery at his probation hearing and further held that the trial court was required to determine whether he was prejudiced by his inability to conduct discovery. See Cuciak v. State, 410 So. 2d 916, 917 (Fla. 1982). Unfortunately for my client, this Court also held that the errors committed below were harmless.

At 26, I thought that what I had to say in oral argument could make a difference in the outcome of the case. Although I have heard of that happening, it has not been my experience in the appeals I have argued before state and federal courts over the last 46 years.

However, I am convinced that oral argument often leads to opinions that more effectively elucidate the principles of law involved and provide greater guidance to the lower court in the case before it and to litigants, counsel, and judges in other cases.

While oral argument is not as prevalent today as it was when I began my career as a state public defender, there are cases where the issues are of such importance, and the potential impact of the court’s opinion so great, that it is in the public interest that the court employ every avenue available to make sure that whatever the result, that the court “get it right.” Such is this case.

The issues before this Court seem simple at first blush. Petitioner made a bar complaint against the Attorney General of the United States and requested an investigation. The Bar refused to consider the complaint stating that it was precluded from doing so by one of its rules. Petitioner filed a petition for writ of mandamus to determine whether The Bar is under a non-discretionary duty to conduct an investigation. [The Court ordered The Bar to respond]. The Bar responded that Petitioner did not have a clear right to seek mandamus and that its decision is correct under the rules promulgated by the Court.

But to decide these questions, this Court must consider whether there is a difference between a client who brings a complaint against a lawyer on his or her own behalf, alleging that the lawyer’s unethical conduct injured or prejudiced them, and an attorney who seeks to vindicate the interests of the citizens of the State of Florida who brings unethical conduct to The Bar’s attention. And further, whether the rules denying former clients the right to appeal the results of an investigation of allegations of unethical conduct by their attorney apply to this Court’s discretionary authority to consider a petition for writ of mandamus by a member of The Bar asking this Court to order The Bar to conduct an investigation.

Oral argument will aid this Court because, whatever decision this Court makes, will break new ground.

Whether the Bar was correct in refusing to conduct an investigation turns in part on an interpretation of Rule 3-7.16(d). Does that rule prevent the Bar from considering whether the Attorney General of the United States engaged in unethical conduct? Or does that rule only apply to constitutional officers of the State of Florida? To decide this question, this Court will have to consider the text of the rule as well as the parties’ differing interpretations of other rules and the “legislative” history of the rule.

Most significantly, this Court is asked to consider the impact of the federal McDade Amendment on the arguments advanced by The Florida Bar and amici that an investigation by The Bar into Ms. Bondi’s conduct would encroach on the activities of the Executive Branch of the U.S. Government. That Amendment expressly provides that all federal government lawyers are required to abide by state ethical rules to the same extent and in the same manner as other lawyers. Although there is agreement that McDade applies, the parties disagree as to the consequences of its application.

What is so important about this issue is that, however this Court rules, that ruling may be relied upon in similar cases throughout the United States.

Finally, the Attorney General of the United States interposes an objection that Florida’s authority to discipline federal lawyers is circumscribed by the Supremacy Clause. Given Congressional enactment of the McDade Amendment, what does this mean? Do the states have no authority to discipline government lawyers as the United States contends in unprecedented fashion, or authority in some circumstances but not others as the 10^th Circuit has found? And what about the circumstances involved in the matter before this Court now?

This issue will undoubtedly lead to a host of hypotheticals that cannot be effectively addressed absent oral argument.

Fundamentally, this Court will decide a case that will set a nationwide precedent for how federal lawyers are regulated in the face of allegations that they have abandoned their ethical obligations to the courts to advance the interests of their client – a case certainly worthy of a dialogue between counsel and the justices on this Court.

Respectfully signed and submitted electronically this 18th day of September, 2025.

___________/s/__________

Jon May

Creative Criminal Defense

Consultants

FL Bar #0276571

P.O. Box 970006

Boca Raton, FL 33497

(954) 439-6500

jonmay@jonmaycriminaldefense.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document was filed electronically and was sent by E-Mail from the Florida Courts’ E-Filing Portal system on all counsel or parties of record listed below, this 18^5h day of September, 2025.

Mark Mason

The Florida Bar

Appellate Counsel, Lawyer Regulation

651 East Jefferson Street

Tallahassee, Florida 32399

mmason@floridabar.org

Counsel for Respondent, The Florida Bar

Mark R. Freeman

Daniel Tenny

Jaynie Lilley

Attorneys, Appellate Staff Civil Division,

Room 7321 U.S. Department of Justice

950 Pennsylvania Ave., NW Washington, DC 20530

Counsel for Amicus Curiae United States

James Uthmeier

Attorney General

David Dewhirst

Chief Deputy Attorney General

Jeffrey Paul Desousa (Fbn110951) Acting Solicitor General

Jason Muehlhoff

Chief Deputy Solicitor General

Office Of The Attorney General The Capitol, Pl-01

Tallahassee, Florida 32399

(850) 414-3300

jeffrey.desousa@myfloridalegal.com jason.muehlhoff@myfloridale-gal.com

jenna.hodges@myfloridalegal.com

Counsel for Amicus Curiae State of Florida

___________/s/__________

Jon May

Certificate Of Compliance

I hereby certify that this motion was typed in 14 point Bookman Old Style. The body of the petition is 1063 words long.

/s/ Jon May

Creative Criminal Defense Consultants

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U.S. deployment of warships to Caribbean rekindles memory of Panama invasion

By Jay Weaver and Antonio María Delgado

As three Navy destroyers and three amphibious warships move toward the coast of Venezuela this weekend in an ostensible U.S. counternarcotics operation, the Trump administration’s show of force is rekindling memories of another presidency, era and country.

In mid-December 1989, President George H.W. Bush ordered a military invasion of Panama, saying its strongman leader, Manuel Noriega, a one-time American ally and CIA informant, was a threat to U.S. interests in the Canal Zone and a corrupt general wanted on drug-trafficking charges for turning his country into a narco-state for Colombian cartels.

During Operation Just Cause, the U.S. troops not only used force but blasted rock music, including songs by the band Guns ‘n’ Roses, as Noriega took sanctuary in the Vatican Embassy in Panama City. He surrendered on Jan. 3, 1990, and was whisked away to Miami, where he would later stand trial, be convicted and spend about 20 years in prison.

Two South Florida lawyers — one who charged Noriega and another who defended him — say that it may look like President Donald Trump has ripped a page out of the Panama playbook as U.S. Naval forces veer toward Venezuela. But attorneys Richard “Dick” Gregorie and Jon May point out there are similarities and differences between then and now. They also say it’s unlikely that Trump, who has an avowed aversion for committing U.S. troops in warfare around the globe, would risk invading a country the size of Venezuela.

Venezuelan President Nicolás Maduro, like Noriega at the height of the U.S. war on drugs, was indicted by a New York grand jury on drug-trafficking charges in 2020. But Maduro is the leader of an oil- and mineral-rich country that, despite its economic troubles, is far larger and more powerful than Panama. Moreover, Maduro doesn’t exert the same degree of control over his military as the Panamanian dictator did over his forces in the 1980s.

“There’s a big difference between the situation that was going on in Panama at the time than what is going in Venezuela,” Gregorie said in an interview on Friday. “There’s something else going on [other] than drug trafficking,” added Gregorie, who worked as a high-level federal prosecutor in Miami and other parts of the country for more than 40 years before his retirement in 2018. “That’s not the reason why

Trump is sending those ships down there. “There’s more going on and intelligence that I don’t have access to,” he said, noting Venezuela’s ties to Iran and the South American country’s substantial mineral resources.

May, who along with attorney Frank Rubino defended Noriega at his 1992 trial in Miami, agreed with the former prosecutor, saying that while Maduro and Noriega seem like similar targets as accused drug traffickers in the United States, invading Venezuela would be foolish.

“I can’t imagine the United States invading Venezuela – other than the crazy factor,” May said, noting that Trump’s sending the fleet of destroyers and warships to Venezuela is a “modest” mission, but perhaps “just enough saber rattling” to help him and the Republicans in the midterm elections next year.

“It was really easy for the U.S. military to crush Panama,” he said, “but it would not be the same thing in Venezuela. You have a highly motivated army in Venezuela that would provide stiff resistance. It would be suicidal.”

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The filing comes after The Florida Bar rejected a complaint submitted early last month by Florida lawyer Jon May and joined by Democracy Defenders Fund (DDF), Lawyers Defending American Democracy (LDAD), Lawyers for the Rule of Law, and a group of 70 prominent attorneys, law professors, and former judges. The complaint urged an investigation and appropriate sanctions against Bondi for engaging in professional misconduct that threatens the rule of law and the administration of justice.

It details how Ms. Bondi has sought to compel Department of Justice lawyers to violate their ethical obligations under the guise of “zealous advocacy,” as announced in her memorandum to all department employees on her first day in office. That memorandum threatens lawyers with discipline and possible termination for falling short, even though the rules of professional conduct limit the “zeal” of attorneys to “lawful and ethical measures.” The complaint focuses on three cases in which department lawyers were terminated or forced to resign as a result of demands that they act unethically, either by Ms. Bondi or a member of her senior management team.

"Since her first day on the job, Pam Bondi has made clear that she plans to use the Department of Justice for political pursuits, and she has done just that,” said Amb. Norm Eisen (ret.), executive chair of Democracy Defenders Fund. “The Florida Bar has a responsibility to hold Bondi – and every lawyer under its purview who is implicated in her conduct – to account for actions that threaten the rule of law and the administration of justice.”

Jamie Conrad, a volunteer with Lawyers Defending American Democracy and co-author of the complaint and the petition, said: “Attorney General Bondi and her team cannot be allowed to operate the Justice Department free from compliance with the same ethics rules applicable to all other lawyers. The AG frequently states that ‘no one is above the law.’ The Florida Bar needs to demonstrate that this includes her.”

Daniel N. Arshack, President of Lawyers for Rule of Law said, "Supreme Court Chief Judge Earl Warren said, ’In civilized life, law floats in a sea of ethics.’ Without strict obedience to the rules of ethics that have guided lawyers for over two centuries, the rule of law sinks, and our civilized society goes down with it. We look to the Disciplinary Committees and the courts to protect the rule of law and our ‘civilized life’.”

“What sets us apart from all the nations of the world is the role that the legal profession plays in preserving our democratic institutions,” said Jon May, Creative Criminal Defense Consultants. “Because we are governed by a set of principles common throughout the United States that require duties of candor to the courts and to the administration of justice, we are the final bulwark against autocratic rule that would seek to undermine the rule of law. The Florida Bar cannot shirk from its responsibility to hold all lawyers accountable to those principles.”

A copy of the original complaint can be found here.

A copy of the petition for writ of mandamus can be found here.

# # #

Democracy Defenders Fund brings together a nonpartisan team to work with national, state, and local allies across the country to defend in real-time the foundations of our democracy.

Lawyers Defending American Democracy is a coalition of lawyers united in the defense of our democracy and committed to galvanizing the legal profession to protect the rule of law.

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By Jay Weaver

Updated June 5, 2025 2:35 PM

About 70 law professors, attorneys and former Florida Supreme Court justices filed an ethics complaint Thursday, June 5, 2025, with the Florida Bar against U.S. Attorney General Pam Bondi. They accuse Bondi of violating her ethical duties as U.S. Attorney General, saying she has committed “serious professional misconduct.”

During her Senate confirmation hearing for U.S. Attorney General, Pam Bondi tip-toed around whether she would stand up to President Donald Trump’s pressure on the Justice Department, promising only in a broad sense that “politics has to be taken out of this system.”

Since her confirmation in February, Bondi has earned the praise of conservative Republicans for loyally following Trump’s agenda while drawing the wrath of critics on the Democratic spectrum who say she has politicized the Justice Department on issues ranging from illegal immigration to public corruption.

Now, a liberal- and moderate-leaning coalition of about 70 law professors, attorneys and former Florida Supreme Court justices is attacking Bondi’s record in an ethics complaint filed on Thursday with the Florida Bar. They accuse Bondi of violating her ethical duties as U.S. Attorney General, saying she has committed “serious professional misconduct that threatens the rule of law and the administration of justice.”

The complaint claims Bondi “has sought to compel Department of Justice lawyers to violate their ethical obligations under the guise of ‘zealous advocacy’ “ that she espoused in a Feb. 5 memo to all agency employees on her first day in office.

The complaint further says Bondi threatened agency lawyers with discipline or termination if they failed “to zealously pursue the President’s political objectives,” alleging her conduct violates Florida Bar rules and longstanding norms of the Justice Department.

The coalition, which includes retired Florida Supreme Court justices Barbara J. Pariente and Peggy A. Quince, noted that the Florida Bar rejected two other recent ethics complaints against Bondi, saying it “does not investigate or prosecute sitting officers appointed under the U.S. Constitution while they are in office.”

But the coalition countered that “the Florida Bar’s dismissal is unsupported by history or precedent,” arguing none of its rules exempt a Florida-licensed lawyer from scrutiny who is accused of abusing her position as a federal public official. Justice Department officials condemned the latest Florida Bar complaint.

“The Florida Bar has twice rejected performative attempts by these out-of-state lawyers to weaponize the bar complaint process against AG Bondi,” Justice Department chief of staff Chad Mizelle said in a statement provided to the Miami Herald on Thursday. “This third vexatious attempt will fail to do anything other than prove that the signatories have less intelligence —and independent thoughts — than sheep.”

The Florida Bar confirmed receipt of the 23-page complaint but did not comment further.

Bondi’s role in firings

The coalition’s complaint accuses Bondi — the 59-year-old former Florida Attorney General and State Attorney in the Tampa area — of playing a central role in the improper firings and resignations of numerous government lawyers during her four-month span at the helm of the Justice Department. Three examples are cited in the complaint:

▪ In mid-April, Bondi and Deputy Attorney General Todd Blanche fired a seasoned immigration lawyer who the Trump administration accused of sabotaging its legal case over the mistaken deportation of a Maryland man to his native El Salvador.

Justice Department lawyer Erez Reuveni argued the government’s case in the deportation of Kilmar Armando Abrego Garcia, who was sent to a Salvadoran mega prison in March due to an “administrative error,” despite an immigration court order that he not be removed from the United States.

Reuveni was initially placed on administrative leave days after informing a federal judge: “Our only arguments are jurisdictional. … He should not have been sent to El Salvador.” The U.S. Supreme Court affirmed the judge’s order directing the Trump administration to “facilitate” Garcia’s release, but he’s still imprisoned in El Salvador.

▪ In mid-February, a longtime federal prosecutor resigned rather than carry out what she described as orders from Trump-appointed officials to pursue enforcement actions unsupported by evidence, according to a copy of her resignation letter.

Denise Cheung, who was the head of the criminal division of the U.S. Attorney’s Office for the District of Columbia, wrote in her resignation letter to interim U.S. Attorney Ed Martin that she had “always sought to offer sound and ethical counsel” and that she had been asked to take investigative and law enforcement actions despite what she called the lack of “sufficient evidence.”

Cheung wrote that she was asked to review documentation provided by the Office of the Deputy Attorney General “to open a criminal investigation into whether a contract had been unlawfully awarded by an executive agency.” The contract was reportedly granted by the Environmental Protection Agency during President Joe Biden’s administration.

▪ Earlier in February, several senior federal prosecutors in New York and Washington resigned after they refused to follow a Justice Department order to drop the corruption charges against New York Mayor Eric Adams. They resigned after Emil Bove, the acting U.S. deputy attorney general, issued a Feb. 10 memo ordering federal prosecutors in New York to dismiss the case against Adams, saying it hampered the mayor’s ability to tackle “illegal immigration and violent crime.”

Danielle R. Sassoon, the acting U.S. attorney for the Southern District of New York, resigned one day after appealing to Bondi. Sassoon said she attended a meeting on Jan. 31 with Bove, Adams’ attorneys and members of her office. “Adams’s attorneys repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with the Department’s enforcement priorities only if the indictment were dismissed,” Sassoon wrote on Feb. 12.

‘Zealous advocacy’

According to the Florida Bar complaint, Bondi’s “principal ethical violation arises from her perversion of the concept of ‘zealous advocacy’ into an overriding campaign, individually and through Messrs. Blanche, Bove and Martin, to coerce and intimidate the lawyers they supervise into violating their ethical obligations.” I

n each of the three examples, Bondi and her senior team “ordered Department lawyers to do things those lawyers were ethically forbidden from doing, under threat of suspension or termination—or fired them for not having done so,” the complaint says.

Jon May, a longtime South Florida criminal defense attorney who represented Panamanian strongman Manuel Noriega in his drug-trafficking case in Miami, said he and others who authored the Florida Bar complaint believe “zealous advocacy operates within the rules of ethics, not outside them.” “

But the Attorney General wrongly demands government lawyers abandon their ethical obligations and advance the Administration’s agenda no matter the cost to the rule of law,” May said.

“Since her first day on the job, Pam Bondi has made clear that she plans to use the Department of Justice for political pursuits, and she has done just that,” said Norm Eisen, executive chair of Democracy Defenders Fund, a nonprofit legal advocacy group in Washington, D.C. Eisen is the former ambassador to the Czech Republic during the Obama administration.

Trump’s executive power

While the Florida Bar complaint focuses on three examples of Bondi’s alleged ethical misconduct, it does not capture Trump’s latest executive order instructing his White House counsel and the attorney general to investigate former President Biden and his staff.

In his order issued on Wednesday, Trump instructed them to examine whether some of Biden’s presidential actions were legally invalid because his aides had enacted those policies without his knowledge — an “attempt to stoke outlandish conspiracy theories about his predecessor,” according to The New York Times.

Nor does the Florida Bar complaint mention perhaps the most politically charged actions taken by the Justice Department in the week after Trump was sworn in on Jan. 20 for a second term as president. Acting Attorney General James McHenry, Bondi’s temporary predecessor, fired more than a dozen career prosecutors in the Justice Department and U.S. Attorney’s Office in Miami who had worked on the classified documents case or the election-interference case arising from the Jan. 6, 2021, attack on the U.S. Capitol — both brought against Trump by the former special counsel, Jack Smith, during the Biden presidency.

The firings by Trump’s Justice Department conjured up then-President Richard Nixon’s controversial move to have special prosecutor Archibald Cox fired because he refused to withdraw a subpoena for the Nixon White House tapes during the Watergate investigation.

In what became known as the “Saturday Night Massacre,” Nixon ordered Attorney General Elliot Richardson to fire Cox, but Richardson refused and resigned. Then, the president ordered the AG’s deputy, William Ruckelshaus, to fire Cox. He also refused and resigned.

Nixon finally prevailed when he ordered the Justice Department’s solicitor general, Robert Bork, to terminate Cox — a move that backfired on Nixon and ultimately led to his resignation as president in 1974. In the aftermath, it was generally understood there would be “no contact” between the president and the attorney general regarding investigations and prosecutions.

But after more than 50 years, the Justice Department’s wall of independence from the White House was officially torn down in July 2024.

In an historic 6-3 opinion, the Supreme Court ruled that former President Trump was generally immune from criminal liability for his official acts — including his attempts to use the Justice Department to obstruct the results of the 2020 election, which he lost to Biden.

The court’s conservative majority found that “the President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed’ ” under Article II of the Constitution.

Bondi pledges Justice Department won’t be weaponized

During her Senate confirmation hearing in mid-January, Bondi said she would keep politics out of the Justice Department — despite refusing to say that Trump lost the 2020 election and previously saying “prosecutors will be prosecuted.”

“The partisanship, the weaponization, will be gone,” Bondi testified, while repeatedly saying the Justice Department had been misused under the Biden administration. “America will have one tier of justice for all.”

In her Feb. 5 “Zealous Advocacy” memo to all Justice Department employees, Bondi advised prosecutors that their responsibilities “include not only aggressively enforcing criminal and civil laws enacted by Congress but also vigorously defending presidential policies and actions against legal challenges on behalf of the United States.”

But then Bondi said: “The discretion afforded Department attorneys entrusted with those responsibilities does not include latitude to substitute personal political views or judgments for those that prevailed in the election.”

She concluded by warning that anyone who “refuses to advance good-faith arguments on behalf of the Administration ... or impedes the Department’s mission will be subject to discipline and potentially termination.”

This story was originally published June 5, 2025 at 11:51 AM.

Jay Weaver Miami Herald 305-376-3446

Jay Weaver writes about federal crime at the crossroads of South Florida and Latin America. Since joining the Miami Herald in 1999, he’s covered the federal courts nonstop, from Elian Gonzalez’s custody battle to Alex Rodriguez’s steroid abuse. He was part of the Herald teams that won the 2001 and 2022 Pulitzer Prizes for breaking news on Elian’s seizure by federal agents and the collapse of a Surfside condo building killing 98 people. He and three Herald colleagues were 2019 Pulitzer Prize finalists for explanatory reporting on gold smuggling between South America and Miami.

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On April 18, federal agents went to arrest Eduardo Flores-Ruiz, who was wanted for illegal entry into the United States, at the courtroom of Judge Hannah C. Dugan in Milwaukee, where he was scheduled to appear on a state criminal charge.

After being notified that federal agents were in her courtroom to arrest Flores-Ruiz, Judge Dugan directed Flores-Ruiz and his attorney to leave the courtroom through a side door reserved for jurors, which had access to a private hallway leading to the public hallway outside the courtroom. Judge Dugan followed them through the door and then returned to the courtroom, where she continued the proceedings. Flores-Ruiz thereafter left the courthouse and, when confronted by federal agents, tried to flee. He did not succeed. See Criminal Complaint filed in Case No. 25-M-397 (SCD).

On Thursday, federal agents arrested Judge Dugan at the courthouse. She was taken before a federal magistrate and released. Later in the day, the FBI Director published a photo of Judge Dugan as she was being “perp walked” to the agent’s car.

The criminal complaint filed with the court accuses Judge Dugan of violating two federal statutes: obstruction of the administration of the law under 18 U.S.C. 1505 and harboring or concealing a person wanted for arrest under 18 U.S.C. 1071. Violating both statutes is punishable by imprisonment for up to five years.

18 U.S.C. 1505 makes it a crime for anyone to:

[C]orruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States

18 U.S.C. 1071 makes it a crime for anyone to:

Harbor[s] or conceal[s] any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person.

Even if the facts demonstrate that Judge Dugan intentionally assisted Flores-Ruiz to evade capture, the District Court for the Eastern District of Wisconsin and later the Seventh Circuit Court of Appeals will have to confront the very real question whether her conduct violated either of these statutes.

In doing so, the courts will consider principles of textualism and originalism. This articled, published this month in the Champion, the magazine of the National Association of Criminal Defense Lawyers, explains how these principles apply to statutory construction and how you can employ them in civil or criminal matters where there is a question of the application of a particular statute to an individual’s or a business’s conduct.

Published this month in the Champion

By Jon May

The Textualism Method of Statutory Construction

Use Textualist Analysis to Show That a Client’s Conduct Is Not a Crime, Position Arguments for Appeal, and Maximize Chances for Supreme Court Review

The U.S. Supreme Court’s decision in Dobbs ¹ (overruling Roe v. Wade) not only threatened all reproductive rights but also other civil liberties that the Supreme Court had recognized since the mid-1950s.² The same principles of originalism and textualism that threaten firmly established civil rights have also limited the reach of criminal statutes. While defense counsel may abhor the devil, it is in a client’s interest that counsel understand what principles of statutory and constitutional interpretation are available to demonstrate that a statute is unconstitutional on its face or as applied to the client’s conduct.

Defense lawyers are familiar with the cases discussed in this article. When they read the decisions, however, they probably focused on the holdings and not on the various approaches the justices took to interpreting statutes. Various rules of statutory construction inform these approaches; understanding these rules will put defense counsel parsecs ahead of the government in crafting a compelling legal arguement and convincing the court to see the purpose of the law as the defense team does.

1. Some Fundamental Principles of Statutory Construction

The principles of construction examined in this article do not constitute the universe of principles available.³ Let’s begin with a recent civil case.

In Bittner v. United States,⁴ the Supreme Court was asked to decide whether an individual who failed to file a report of his foreign bank accounts (FBAR) could be fined only $10,000 for each report he failed to file or $10,000 for each account that he failed to report on each form. This made a significant difference to Alexandru Bittner because, over five years, he failed to file the required FBAR pertaining to 272 foreign bank accounts. If the former rule applied, he owed the government only $50,000 ($10,000 for each year he failed to file a report); if the latter applied, $2.72 million.⁵ It is not difficult to guess which interpretation the government chose.

The court’s 5-4 opinion was not unusual. But the division between the judges was not the usual breakdown. Justice Gorsuch wrote the opinion, joined by Chief Justice Roberts, Associate Justices Alito and Kavanaugh (no surprises there) but also Ketanji Brown Jackson. Justice Barrett, Justice Thomas, Justice Sotomayor, and Justice Kagan dissented. This breakdown demonstrates that the difference in the analysis of the statute between the justices in the majority and in the dissent was not ideological; indeed, both sides employed the same tools in interpreting the statute.

Justice Gorsuch began by discussing the language used by two relevant statutory provisions, 31 U.S.C. §§ 5314 and 5321(a)(5)(A). The first statute re-quires the filing of reports providing information concerning a transaction with a foreign financial agency. The second imposes a $10,000 penalty for violating § 5314. Neither statute uses the word “account.”

By contrast, § 5321(a)(5)(C)(i)(I) increases the fine for a willful violation, which the statute defines as “a failure to report the existence for an account” and increases the penalty for a willful violation to either $100,000 or 50% of “the balance in an account at the time of the violation.” Unlike the provisions at issue, this portion of the statute uses the word “account” and ties the amount of the fine to money in an account at the time of the transaction.⁶

From this, Justice Gorsuch applied the rule of statutory construction, ex-pressio unius est exclusio alterius. This principle means that when Congress uses a term in one part of a statute but not another, a court can assume that Congress knew what it was doing and intended that there be a difference.⁷ From that principle, Justice Gorsuch found that since Congress expressly imposed penalties on a per-account basis for willful violations but not for non-willful violations, there could only be one $10,000 fine for the failure to file a report of transactions with foreign bank accounts in a given year, no matter how many such accounts were omitted.⁸

What does this say about how defense counsel should proceed in any attack on a statute? First, focus on the language used. Do the words clearly apply to the client’s conduct; are they ambiguous, or, as in Bittner, are they implied? Then, look to see whether other provisions in the same or neighboring statutes use different language and what that implies about the meaning of the words used in the law defense counsel is attacking.

How does this apply to the types of cases defense lawyers handle on a daily basis? Those cases will be discussed later in this article. Bittner is just a springboard to understanding how the court has construed criminal statutes and constitutional provisions.

Justice Gorsuch then moved on to “contextual clues.” He cited the government’s “warnings, fact sheets, and instructions” concerning the Bank Secrecy Act (BSA), where the government told the public that the failure to file an FBAR may be subject to a penalty not to exceed $10,000. “Nowhere in these materials did the government announce its current theory that a single deficient or untimely report can give rise to multiple violations....”⁹

Justice Gorsuch conceded that these statements by the Department of the Treasury do not control the court’s analysis. However, he added that the court “has long said that courts may consider the consistency of an agency’s views when we weigh the persuasiveness of any interpretation it presents in court.”¹⁰

This same principle had been applied earlier in United States v. Pennsylvania Industrial Chemical Corp, a decision that was not discussed in Bittner.¹¹ Pennsylvania Industrial is not a statutory construction decision. The petitioner in Pennsylvania Industrial did not contend that the statute was ambiguous. Instead, the petitioner argued that it was entitled to rely on how the Army Corp of Engineers had construed and applied a statute as an affirmative defense to a claim that the company had violated the law. The defendant was convicted of violating the Rivers and Harbors Act of 1899 by discharging industrial pollutants into a navigable river. The Supreme Court held that the conviction should be reversed because the trial court excluded evidence that the Army Corps of Engineers consistently limited its regulations to obstructions to navigation and thus may have deprived the defendant of fair warning as to what conduct the government intended to criminalize.¹²

Although courts are no longer permitted to defer to an agency’s interpretation of its own rules under the decision in Loper Bright Enterprises (overturning Chevron deference),¹³ courts and defendants can, as in Pennsylvania Industrial, consider an agency’s interpretation of a statute as an affirmative defense for the jury to consider when deciding a case. Jumping ahead, both cases come together when they discuss a corollary to reliance, the requirement under due process of law that a statute provide adequate notice of what it proscribes.

Next, Justice Gorsuch turns to an argument that reflects, but does not mention, another principle of statutory construction: a court should not adhere to a literal reading of a statute that leads to an absurd result.¹⁴ This is the reason Justice Gorsuch finds the government’s interpretation of the statute absurd:

Consider someone who has a $10 million balance in a single account and nonwillfully fails to report that account. Everyone agrees he is subject to a single penalty of $10,000. Yet under the government’s theory, another person engaging in the same nonwillful conduct concerning a dozen foreign accounts with an aggregate balance of $10,001 would be subject to a penalty of $120,000.¹⁵

This illustration demonstrates that the government’s interpretation flies in the face of Congress’s statement of purpose when this statute was enacted:

Congress has declared that the BSA’s “purpose” is “to require” certain “reports” or “records” that may assist the government in everything from criminal and tax to intelligence and counterintelligence investigations. 31 U.S.C. § 5311.¹⁶

Finally, Justice Gorsuch turns to due process. First, he employs a negative analysis. “The relevant provisions of the BSA nowhere discuss per-account penalties for nonwillful violations.” Then he refers to his previous finding that government guidance on the BSA only alerted the public to per-report, not per-account, penalties. In such circumstances, the court should apply the rule of lenity: when the law is ambiguous, it should be interpreted in favor of the defendant. This rule is intended to implement the rights granted by due process; that is, fair warning must be given so that the world knows what will happen if a certain line is passed.¹⁷

In a parting shot to the dissent, Justice Gorsuch writes, “In these circumstances, the rule of lenity, not to mention a dose of common sense, favors a strict construction.”¹⁸

Under the doctrine of originalism, one must first look at the plain meaning of the words used. One cannot consider the drafter’s intent, at the Constitutional Convention or on a congressional committee. However, in determining the plain meaning, one looks at how those words were understood at the time of the enactment, either in the past or in the present. It is not permissible to consider legislative reports or the statements of those involved in drafting a provision or who voted for it because it is impossible to know what each legislator was thinking. A legislature is a collective body and does not have a mind, and legislation is usually the result of some compromise.¹⁹

If the most reasonable interpretation of the plain meaning applies to the defendant’s conduct, the analysis is over, but if arguably the words apply to a narrower range of conduct, then one can apply various principles to determine how the statute should be interpreted. These principles need not be applied in a particular order, and not all will apply in a particular case.

1. How do the applicable provisions of a statutory scheme work together? In Bittner, two provisions applied — § 5314 delineated duties under the Bank Secrecy Act and § 5321 detailed the penalties for failing to follow the law.

2. Next, compare the plain language of the relevant provisions and see whether the words used are more consistent with one party’s interpretation of the law than the other’s. Consider whether different words would have been used if it were de-signed to effectuate a certain result.

3. Does a different section of the statute use different language, and does that language support an interpretation contrary to the one the government urges? If so, then under the principle of expressio unius est exclusio alterius, defense counsel can argue that had Congress intended the operative provision to be interpreted the way the government wanted the court to, Congress knew how to do that and did not.

4. Next, apply “contextual” clues.

a. Did Congress provide a statement of intent when it enacted the statute? This is different from resorting to legislative history because it reflects the intent of the entire legislative body, not individual members who may have differing interpretations of what the statute means.

b. Did the agency responsible for implementing the statute issue “warnings, fact sheets, and instructions” that are consistent with defense counsel’s interpretation of the statute? This is different from Chevron deference (which the Court has now repudiated); rather, it goes to the reasonableness of a defendant’s reliance upon the government’s own interpretation of a provision in guiding the defendant’s own actions.

c. Does the government’s reading of the statute lead to absurd results? It defies common sense for a person to owe a $50,000 fine if the person fails to make a single report listing five accounts, each containing $20,000 for a total of $100,000, but only $10,000 if the person makes a single report of one account containing $1,000,000.

[Reading this case allows one to see how much the interpretation of a statute can turn upon a judge’s view of policy (or values). In response to this point, the dissent makes an equally persuasive argument that Congress may have believed someone hiding five accounts is of more interest to the government than an individual just using one account. The former is more likely to reflect money laundering, and the latter tax evasion.]

d. Finally, argue that the rule of lenity applies because the statute does not expressly give notice that the defendant’s conduct is a crime.

Let’s look at how this approach to constitutional and statutory construction has been applied to various criminal decisions. First, let’s focus on the Supreme Court’s interpretation of the mail and wire fraud statutes since 1987.

2. How These Principles Have Been Employed in the Evolution of Fraud Cases

On first reading, the mail fraud statute seems clear:

Whoever, having devised or in-tending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service.

18 U.S.C.A. § 1341

On its face, the statute defines two independent ways of committing fraud: (1) the defendant created a scheme or artifice to defraud; or (2) made false or fraudulent pretenses, representations, or promises to obtain money or property.

For many years, the courts held that one could be convicted on either the first or the second basis as long as, in either case, the defendant made use of the mail (and later any common carrier like FedEx or UPS). For the most part, the government used the first clause in prosecutions when a defendant violated a fiduciary duty to the defendant’s employer or to the citizens of a state. For example, in United States v. George,²⁰ the government prosecuted an employee who arranged for his employer to purchase cabinets from a particular manufacturer in exchange for a kickback. He was convicted of devising a scheme to defraud his employer of its right to “his honest and faithful services.” In United States v. Isaacs,²¹ a governor who accepted bribes in return for fixing particular racing dates for a horse racing enterprise was convicted of devising a scheme to defraud the people of their right to his “honest and faithful services as governor.”

These kinds of prosecutions multi-plied until the Supreme Court held that the word “or” actually meant “and.” In McNally v. United States,²² the defendants were convicted of mail fraud for devising a scheme to defraud the citizens and government of Kentucky of their right to have the state’s affairs conducted honestly. The government did not argue that the defendants sought or obtained money or property, just that they had engaged in a scheme or artifice to deprive the citizens of their honest services.

In reversing their convictions, the Court addressed squarely the contention that “[b]ecause the two phrases identifying the proscribed schemes appear in the disjunctive, it is arguable that they are to be construed independently and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property.” The Court acknowledged that this interpretation of the law is the one “that has been taken by each of the courts of appeals that has addressed the issue.”²³

While that is the standard construction of the words, it is trumped by the longstanding position of the Court that “the words ‘to defraud’ commonly refer ‘to wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’”²⁴

What does one learn from McNally? Today, one might argue that there was a debate between traditional rules of statutory construction and the historical meaning of words. Or one might see this decision as reflecting the Court’s hostility to criminal statutes that go beyond protecting property rights. The court also delved into legislative history of the statute, which it contends supports its interpretation.

But most importantly, McNally teaches that the Court will interpret the law to reflect its own values, and to pre-vail in the Supreme Court one needs to use the various rules of interpretation to play to those values.

The other fraud case from 1987, Carpenter v. United States, reflects this. R. Foster Winans, a reporter for the Wall Street Journal, wrote a daily column, “Heard on the Street,” about stocks. After the paper published his stories, the share price of whatever stock he discussed in his column would trade up or down based on whether he had given it a positive or negative review. Although some of his sources were insiders, such as CEOs, the in-formation he relied on was not secret. Winans got into trouble when he shared information from his columns before it was published with others who would trade on that information and share the profits with Winans. Winans was aided by his roommate David Carpenter in this scheme. They all made a lot of money. Although the Wall Street Journal did not lose any money or property, the government argued that Carpenter violated his fiduciary duty to the company. Carpenter argued that this was an intangible right that was not covered by the mail fraud statute.²⁵

The Supreme Court said that this right may be intangible, but it was nevertheless a property right, so the mail fraud statute was violated because the scheme or artifice to defraud involved a right to property, that is, confidential information owned by the Wall Street Journal.

Once again, the Court relied upon a long line of decisions that had held that confidential information is a property right.

So, when is a property right a property right, and when is it not a property right? That question was addressed by Justice Ginsburg in the Court’s unanimous decision in Cleveland v. United States.²⁶ In that case, Carl Cleveland was prosecuted for making false statements when applying to the Louisiana State Police for permission to operate video poker machines. The Court held that permits or licenses do not qualify as “property” within § 1341’s compass. The Court arrived at its decision by finding that for purposes of the mail fraud statute, the thing obtained must be property in the hands of the victim. State and municipal licenses are not “property” for purposes of § 1341 and are only property in the hands of the official licensor.

The Court began by determining what kind of law the federal government was trying to protect. It found that the Louisiana provision was regulatory. This was a critical finding because if mail fraud could be used to prosecute misstatements made to obtain a state license, then it could be applied to a mis- statement made to get all kinds of licenses “including drivers’ licenses, medical licenses, and fishing and hunting licens-es.”²⁷ Appellate lawyers call this kind of argument “a parade of horribles.”

Second, to expand federal power over such purely state activities, Congress must explicitly state that intent. This argument is a powerful one to make because Congress often fails to be explicit. “‘[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance’ in the prosecution of crimes.’”28 The overcriminalization of federal law is an argument to which the Supreme Court is increasingly receptive.

Third, a common doctrine applied by the Supreme Court in interpreting federal criminal statutes is the “rule of lenity.” In this case, the Court said, to the extent that the word “property” is ambiguous, “we have instructed that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’”²⁹ Thus, “[i]n deciding what is ‘property’ under § 1341, we think ‘it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’”³⁰

3. How the Supreme Court Employed These Principles to Other Criminal Statutes

The Supreme Court’s 2024 decision in Pulsifer v. United States³¹ informs arguments that could be made regarding other statutes. Mark Pulsifer faced a mandatory minimum sentence of 15 years in prison after pleading guilty to distributing at least 50 grams of methamphetamine. The question before the Supreme Court was whether he was entitled to a sentence less than the mandatory minimum after enactment of a new statute that made it possible for more defendants to be eligible for the “safety valve.” That statute is 18 U.S.C. § 3553(f). Pursuant to that statute, a defendant is eligible to be sentenced under a mandatory minimum, subject to various disqualifying conditions described in sections 1–4.

Section (f)(1), the provision before the Court, addresses disqualifications based on the defendant’s criminal history. Sections (f)(2) to (f)(4) address those cases where the safety valve would not apply at all, such as:

(f)(2) the defendant used violence or credible threats of violence or possessed a firearm or other dangerous weapon;

(f)(3) the offense resulted in death or serious bodily injury to any person;

(f)(4) the defendant was an organizer, leader, manager, or supervisor of others in the of defense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act.

(emphasis added).

If the defendant’s offense did not involve any of the circumstances described in (f)(2) through (f)(4), he would still be ineligible based upon his criminal history under (f)(1) if he had more than four criminal history points, a 3-point offense, and a 2-point violent offense.

Pulsiver had two 3-point offenses, but he did not have a 2-point crime of violence. Pulsiver argued that he qualified for the safety valve because a defendant was only ineligible if all three conditions applied. Not so, said the government: The statute must be read as if the word “and” meant “or,” and the Supreme Court agreed.

Justice Kagan wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Gorsuch wrote the dissent, joined by Justices Sotomayor and Jackson. Justice Kagan stated that both sides presented equally plausible textual interpretations of the statute. Justice Gorsuch said not at all; the ma-jority’s interpretation was absurd.

Justice Kagan said that popular belief notwithstanding, there were situations when the word “and” is not being used as a conjunction. Consider Article III, § 2 of the Constitution, which provides that “[t]he judicial Power shall extend to all Cases ... arising under this Constitution, the Laws of the United States, and Treaties.” No one would contend that a court’s jurisdiction is limited to a case where all these qualifications apply. The statute means that the court can adjudicate any case that involves the Constitution or the Laws of the United States, or a treaty. This is understood from the context and is not ambiguous. Another example from the Constitution is Article I, § 8, cl. 3, which gives Congress the authority to “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Plainly, Congress is not limited to enacting statutes that only apply when all three of these conditions are met. For a nonconstitutional example, she cited a hypothetical posed to Pulsiver’s attorney during oral argument: a hospital’s directive “not to eat, drink, and smoke” for the 12 hours preceding a surgery. “Even Pulsifer’s counsel agreed that he would not feel free to have a steak and martini so long as he abstained from tobacco.”

To explain why grammar does not answer the question, only context does, Justice Kagan asks us to consider two examples, one previously referenced. In the case of a prohibition on “drinking and driving,” people know that this means do not do both because only both are dangerous if done together. In the case of a prohibition on “eating and drinking” before surgery, people know that either is dangerous alone^.32

Since grammar fails to settle the question, we must examine the context of the law. Here, Pulsiver’s argument that only the combination of conditions disqualifies one from being eligible for the safety valve creates two statutory difficulties. The first condition would become superfluous because if the defendant suffers from conditions 2 and 3, i.e., having a 3-point offense and a 2-point crime of violence, he will always satisfy condition 1 because his total criminal history exceeds 4 points. Second, his interpretation would lead to situations in which defendants with more serious criminal histories would be eligible, whereas defendants with less severe criminal histories would not. A defendant could have five 3-point crimes of violent offenses for a criminal history of 15 and be eligible for the safety valve, but a defendant who has five criminal history points from one 3-point offense and one 2-point violent felony offense would not. Justice Kagan asks, “Which of the two defendants is the more serious prior offender? The latter of course: His record exhibits greater recidivism, lengthier sentences, and more violence.”³³

Now, let’s look at Justice Gorsuch’s response to this analysis. Justice Gorsuch explains in general how the Guidelines work and then moves on to the subsequent objections to the mandatory minimum provisions, which failed to distinguish between defendants whose criminal record did not demonstrate an ongoing threat to society and those whose record of prior convictions demonstrated a need to incapacitate them for a long period of time. This led to the enactment of the safety valve, which gave the courts the authority to impose a sentence under the mandatory minimum. However, the safety valve proved to be too limited, and that eventually resulted in the enactment of the First Step Act,³⁴ which significantly increased the number of individuals eligible for a sentence less than the mandatory minimum.³⁵

It is against this backdrop that Gorsuch contested Kagan’s thesis. According to Gorsuch, had Congress meant “and” to mean “or,” Congress had a simple solution, it could have just used the word or.³⁶ More significantly, Congress did use the word “or” in paragraphs (f) (2), (f)(3), and (f)(4), which dealt with eligibility based on the crime for which the defendant was convicted.

Regarding the application of grammar, absent some suggestion that a term bears a specialized meaning, the Court’s duty is to interpret Congress’s work as an ordinary reader would. The rules of grammar say that “and” is a conjunction. The function of a conjunction is to connect items. “And” is an additive con-junction, which means that when “and” performs that role, it means “together with,” “along with,” “in addition to,” or “as well as.” When “and” connects a list of conditional statements that means it functions like the word “unless.”³⁷ This further supports Justice Gorsuch’s conclusion that “and” cannot be interpreted to mean “or.”

According to Justice Gorsuch, once a court determines “the most natural sense of the law’s terms,” the analysis is over.³⁸

In response to the majority’s contention that Pulsiver’s argument would make condition one (more than four criminal history points) superfluous since if both conditions two (a 3-point offense) added to condition three (a 2-point violent felony) always exceed 4 points, Justice Gorsuch points out that not every 3-point offense counts in determining a defendant’s criminal history. Points associated with hitchhiking, public intoxication, and fish and game offenses, for example (§ 4A1.2(c)(2)), are never counted. Nor are points associated with sentences imposed by a court-martial, a foreign court, or a tribal court.

Having knocked out the majority’s superfluity argument, Justice Gorsuch says, let’s assume the statute is ambiguous. That does not mean that the Court can produce some policy reason to support one interpretation over another. “[W]e have neither the institutional competence nor the constitutional mandate to assess the relative merits of different approaches Congress could have taken.” Instead, the Court is required to apply the rule of lenity and adopt the interpretation most favorable to the defendant.³⁹

Pulsiver provides a wealth of approaches to statutory construction that defense counsel can draw upon.

1. Policy arguments do make a difference — maybe not at the district or circuit levels, but certainly before the Supreme Court. Therefore, if lawyers are positioning an argument for future consideration by the Court, they should not omit to demonstrate why the argument best effectuates the purpose of the statute. Pulsiver was a battle between competing policy positions. The majority was concerned that Pulsiver’s position would cause more serious criminals to escape punishment. The dissent was concerned that the government’s position would undermine the statute’s purpose to greatly increase the number of persons released from prison.

2. Brush up on grammar. Analyzing statutory construction is a way to have a case thrown out in the district court. Compared to understanding DNA evidence or the Sentencing Guidelines, the principles of grammar are easy.

3. Two principles of statutory construction that the justices addressed at length in the opinion but did not play a major role in the outcome were the doctrines of lenity and absurdity.

A. Lenity “requires courts to interpret ambiguous ‘penal laws,’ including those concerning sentencing, in favor of liberty, not punishment.” It comes up frequently in cases when courts are called upon to construe a new statute or the application of a statute to unusual circumstances.

i. “Courts construe ambiguous penal laws with lenity because a free nation operates against a background presumption of individual liberty.”

ii. “[O]nly the people’s elected representatives, not their judges, are vested with the power to define a crime, and ordain its punishment.”

iii. “Lenity protects vital due process interests, as well, by ensuring individuals fair notice of the consequences of their actions.”

iv. It guards “against, the possibility that judges might condemn unpopular individuals to punishment on the strength of their own views about common sense, good public policy, or no more than a guess as to what Congress intended.”

Justice Gorsuch calls these “weighty constitutional values.”⁴⁰

The absurdity doctrine is an incredibly useful, but rarely used, principle that may be available in an argument that a statute is unconstitutional as applied:

When a statute produces a truly irrational result, we have a doctrine to deal with the dilemma: absurdity. In narrow circumstances, a simple and “eas[ily]” fixed statutory error that “no reasonable person could intend” may be amenable to judicial correction under this Court’s traditional absurdity doctrine.⁴¹

Because attorneys rarely raise this doctrine, it has rarely been applied by the courts. However, unlike a rational basis argument, which is almost impossible to satisfy in a criminal context, it is not necessary to demonstrate that there is no circumstance where the statute rationally applies. All defense counsel needs to show is that the statute cannot rationally be applied to the client’s conduct.

4. Context Is the New History

Consider how these principles of statutory construction could impact a decision in a case presently before the Supreme Court. In Thompson v. United States,⁴² the Court is asked to decide whether a statement that is misleading, but not false, violates 18 U.S.C. § 1014, which criminalizes making “any false statement upon any [loan] application ... for the purpose of influencing in any way the action of [virtually every kind of lending institution one could think of, other than the Mafia].

As in Pulsiver, Thompson advances an argument based on grammar, while the government contends that the language must be viewed in context.

In his petition for certiorari, Patrick Thompson argued:

1. “[S]tatutory interpretation must begin with, and ultimately heed, what a statute actually says.” Groff v. DeJoy, 600 U.S. 447, 468 (2023) (brackets and internal quotation marks omitted). The text of section 1014 could not be any clearer: It punishes a person who “knowingly makes any false statement,” 18 U.S.C. § 1014, not a person who makes a true but misleading statement....⁴³

2. After reviewing various statutes which only use the word “false” or only the word “misleading,” Thompson argued:

“Congress knows how to prohibit misleading statements, fraudulent statements, and omissions when it wants to. Congress specifically prohibits them by name. In section 1014, by contrast, Congress prohibited only false statements. The obvious inference is that section 1014 does not criminalize the making of statements that are merely misleading or fraudulent....”⁴⁴

3. To the extent that some courts have defined false statements as including misleading statements, they have done so by assessing the materiality of the statement. But that is inconsistent with the decision of the Supreme Court in United Statesv. Well, which held that materiality is not an element of section 1014.⁴⁵

4. Finally, Thompson invokes the rule of lenity:

Before subjecting someone to such substantial criminal penalties, “when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” Williams, 458 U.S. at 290 (internal quotation marks omitted).⁴⁶

In response to Thompson’s petition, the government argues that the circuit courts were not in conflict and that even if they were, Thompson was not entitled to have his case reviewed by the Court because his statements were not just misleading, they were actually false.⁴⁷

The evidence against Thompson is not detailed here because the facts are not important for the purposes of this article. After reading the facts described in the Seventh Circuit’s opinion, it is certainly possible for one to say that Thompson’s statements were not merely misleading but were actually false. Still, this is another case that could go either way.

Consider the rest of the government’s argument:

1. The government disputes Thompson’s argument as to the meaning of false.

“In ordinary usage, the word ‘false’ has never been limited by notions of ‘technical’ or ‘literal’ veracity. See, e.g., Webster’s Third New International Dictionary 819 (1981) (defining ‘false’ as ‘not true,’ ‘deceitful,’ ‘tending to mislead’)” (capitalization and emphasis omitted).⁴⁸

2. The government then moves on to a policy argument.

The statute “criminalizes false statements made ‘for the purpose of influencing in any way the action of’ the lenders and other financial institutions listed in the statute. 18 U.S.C. 1014. It would be anomalous to read a law designed to protect lenders from being ‘influenc[ed] in any way’ as excluding misleading statements. Ibid.”⁴⁹

The government rejects Thompson’s argument that Congress purposely chose to use the word false in some statutes while it used misleading, demonstrating that these words are exclusive. “The other provisions were enacted at various times, some of them decades apart.”⁵⁰

“Accordingly, the kind of inference that can be drawn when Congress includes ‘particular language in one section of a statute but omit[s] it in another section of the same Act,’ Johnson v. United States, 559 U.S. 133, 143 (2010) (citation omitted), does not apply here.”⁵¹ (emphasis in original)

Finally, the government engaged in a close analysis of the cases that petitioner relies upon and distinguished each on the grounds that each did not actually hold that a false statement could never include a misleading statement.⁵²

Mark Allenbaugh and Alan Ellis published an article on Thompson in Law360. They believe that the Supreme Court will rule in favor of Thompson, relying on recent Supreme Court cases reigning in broad theories of liability.

I am not convinced. Based on how the Court ruled in Pulsiver, I believe that it is more likely that the Court is going to focus on the language “for the purpose of influencing in any way the action of” and find that in that context, a misleading statement may be as damaging as a false statement and that including such statements within the meaning of false best serves the purpose of the statute. The creativity of criminal minds knows no bounds, and permitting misleading statements to obtain loans is just an invitation for more criminals to walk through that door. But I agree with their larger point, that at this time, with this Court, the opportunities for creative advocacy are at a high point. So how do you take advantage of this brave new world?

5. Statutory Deconstruction: An Approach to Attacking Statutes That Purport to Make a Client’s Lawful Conduct, Unlawful

When I come into a case, my default assumption is that if the facts alleged are true, my client violated the offenses charged. My goal is to prove to myself that my assumption is wrong. Likely, however, I am not going to find a case directly on point holding that the particular offense is infirm for some reason. At best, I will find instances where courts held that under the facts in that particular case, the defendant did not violate the law. Certainly, in most cases, one can do no more than make the best argument one can. At times, defense counsel feels that the application of a law to what the client is accused of is offensive. There may be some basic unfairness to it. Defense counsel may think that Congress surely did not intend for this statute to apply to what the client is alleged to have done. The statute may even operate in a way that effectively discriminates against a definable group while treating a favored group differently. The most obvious example is the crack cocaine - powder cocaine disparity. While there may have been a basis to believe that crack cocaine was more dangerous than powder cocaine when Congress enacted the mandatory minimum statute, it quickly became known that this was not the case. The failure to correct that disparity was simply the result of racism.

Here is another example. Deferred prosecution agreements were created when the Speedy Trial Act was enacted in the early 1970s. It was intended as a means of diverting low-level offenders out of the system. But by the 80s, most low-level offenders were subject to mandatory minimum sentences, and DPAs fell out of use. But beginning in the 1990s and accelerating in the 2000s, the Department of Justice began handing out DPAs to some of the largest corporations, believing that criminal fines and forfeitures were a way to fight corporate crime without risking companies imploding as did Enron and Arthur Anderson or being debarred from government contracts.

When a lawyer concludes that the prosecution of a client is not right and not fair, the lawyer’s research should begin at the beginning, when Congress enacted the statute. Although legislative history is disfavored in this era of textualism, it is nevertheless essential to counsel’s understanding of the law. Also, the Supreme Court distinguishes between legislative history and statutory history.

These form part of the context of the statute. And (unlike legislative history) can properly be presumed to have been before all the members of the legislature when they voted. So a change in the language of a prior statute presumably connotes a change in meaning.⁵³

As seen in Pulsiver and with the Seventh Circuit’s decision in Thompson, while the Supreme Court is hostile to arguments based on “policy,” it is very receptive to arguments based on “context.”

Once defense lawyers have a context to argue to a court, they can use the various principles of statutory construction to support it.

6. Weapons for the Defense

This article is not a defense of the textualism or originalism mode of statutory construction. Many people, professional and lay alike, believe these doctrines have been a pox on the nation that has undermined and will continue to undermine civil liberties and advance the interest of the wealthy and big business. Some, like Professor Dorfman, argue that textualism and originalism are rationales designed to hide aggressive judicial activism by judges who have demonstrated a willingness to misinterpret history to achieve their ideological ends. In 2024, Justice Breyer published Reading the Constitution: Why I Chose Pragmatism, Not Textualism. His book demolishes the arguments in favor of textualism and originalism and should be considered “required reading” for anyone concerned with the future of the law.⁵⁴

Regardless of one’s opinion of these twin doctrines and the conservative wing of the Court, these principles have often tipped the balance in favor of the accused. Use these weapons and go forth and slay the dragon.

© 2025, National Association of Criminal Defense Lawyers. All rights reserved.

Notes

1. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

2. Jon May, Justice Alito’s Opinion on Abortion: Not Just the End of Reproductive Rights, but the Downfall of Fundamental Civil Liberties Guaranteed by the Fourth Amendment to All Americans, Verdict, June 27, 2022; https:// verdict.justia.com/2022/06/27/justice-alitos-opinion-on-abortion-not-just-the-end-of-reproductive-rights-but-the-downfall-of -fundamental-civil-liberties-guaranteed-by-the-fourth-amendment-to-all-americans.

3. See Antonin Scalia & Bryan A. Gardner, Reading Law: The Interpretation Of Legal Texts (2012). The authors discuss 70 principles courts employ in construing statutes. No one should make a statutory construction argument without first reviewing their treatise.

4. Bittner v. United States, 598 U.S. 85, 143 S. Ct 713 (2023).

5. Id.

6. Id. at 94.

7. Id.

8. Id.

9. Id. at 97.

10. Id.

11. 411 U.S. 655 (1973).

12. Id. at 673-74.

13. Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).

14. Antonin Scalia & Bryan A. Gardner, at 234.

15. Bittner, supra, 598 U.S. at 100.

16. Id. at 98.

17. Id. at 102.

18. Id. at 103.

19. See Scalia & Garner, at 369 et seq.

20. 477 F.2d 508, 513 (7th Cir. 1973).

21. 493 F.2d 1124, 1150 (7th Cir. 1974).

22. 483 US. 350 (1987).

23. Id. at 359.

24. Id. at 458-59.

25. 484 U.S. 19, 108 S. Ct. 316 (1987).

26. Cleveland v. United States, 531 U.S. 12, 121 S. Ct. 365 (2000).

27. Id. at 22.

28. Id. at 25. See Jones v. United States, 529 U.S. 848, 858, 120 S. Ct. 1904 (2000) (quoting United States v. Bass, 404 U.S. 336, 349, 92 S. Ct. 515 (1971)).

29. Rewis v. United States, 401 U.S. 808, 812, 91 S. Ct. 1056 (1971).

30. Cleveland, 121 S. Ct. at 374 (quoting united States v. universal C.I.T. Credit Corp., 344 u.S. 218, 222, 73 S. Ct. 227 (1952)).

31. Pulsifer v. United States, 601 U.S. 124, 144 S. Ct. 718 (2024).

32. Id. at 141.

33. Id. at 147.

34. First Step Act of 2018, Pub. L. No. 115-391 (2018), https://www.govinfo.gov/ app/details/PLAW-115publ391.

35. Id. at 157-160.

36. Id. at 162.

37. Id. at 161.

38. Id. at 164.

39. Id. at 144.

40. Id. at 184-85.

41. Id. at 180.

42. No: 23-1095.

43. Cert. pet. at 13.

44. Id. at 15.

45. Id. at 12.

46. Id. at 18.

47. Response at 5-6.

48. Id. at 6.

49. Id. at 7.

50. Id. at 9.

51. Id.

52. Id. at 11-13.

53. Scalia & Gardner, supra, at 256.

54. Stephen Breyer, Reading The Constitution: Why I Chose Pragmatism, Not Textualism (2024).

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The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.

With this power goes the duty to be just, fair, and impartial. The citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.[1]

Here is the paragraph the AI claims is rewritten in the style of each current Supreme Court Justice. How did it do?

1. Chief Justice John Roberts:

The office of the prosecutor vests an authority over the lives, liberties, and reputations of individuals unmatched by almost any other actor within our system. This discretion, while essential to the enforcement of law, is considerable. The prosecutor possesses the capacity to initiate investigations into the lives of citizens and, should inclination so dictate, to conduct these inquiries amidst public pronouncements and implications both direct and indirect. Alternatively, a prosecutor might pursue a less conspicuous path, engaging the acquaintances of a citizen in interviews. The power to command arrests, to present matters before the grand jury in the confidential confines of its session, and upon the prosecutor's singular exposition of the facts, to occasion the indictment and detention of a citizen pending trial resides within this role. The prosecutor may also elect to terminate a case prior to trial, thereby precluding any opportunity for the defense to offer its perspective. Or, the prosecutor may proceed to a public adjudication. Even following a conviction, the prosecutor retains the ability to offer recommendations concerning sentencing, including the determination of probation or a suspended sentence, and subsequently, to assess an individual's suitability for parole.

This significant power is accompanied by a commensurate duty to uphold principles of justice, fairness, and impartiality. The security of the citizenry rests upon the prosecutor who tempers a necessary zeal with an understanding of humaneness, who prioritizes the pursuit of truth over the creation of victims, who serves the dictates of the law rather than partisan objectives, and who approaches the responsibilities of the office with appropriate humility.

2. Justice Clarence Thomas:

Consider the prosecutor. He wields a control over a man's life, his liberty, his very name, exceeding that of nearly anyone else in this Nation. His judgment is vast. He can set investigators upon a citizen, and if that be his character, do so with public noise and hints plain or subtle. Or, the prosecutor might take a quieter road, questioning a citizen's friends. He can order arrests, bring cases to the grand jury in secret, and based solely on his telling of events, bring about indictment and detention for trial. He can drop the case before trial, leaving the defense unheard. Or he can proceed to open trial. If conviction follows, the prosecutor still advises on sentence, on probation or suspension, and later, on parole eligibility.

This power demands a corresponding duty: to be just, fair, and impartial. A citizen's protection lies in the prosecutor who blends zeal with kindness, who seeks truth, not targets, who serves the law, not factions, and who acts with humility in his task.

3. Justice Samuel Alito:

The prosecutor in our system holds a remarkable degree of authority over an individual's life, liberty, and reputation, perhaps more so than almost any other single actor. The scope of this discretion is considerable. A prosecutor has the power to initiate investigations against citizens, and if so inclined, to do so in a manner that involves public statements and suggestions, whether direct or implied. Alternatively, a prosecutor might choose a more discreet approach, such as interviewing a citizen's associates. The prosecutor can command arrests, present evidence to the grand jury in a closed proceeding, and based on his unilateral presentation of facts, secure an indictment and the detention of the citizen for trial. The prosecutor also has the option to dismiss a case before trial, thus preventing the defense from presenting its case. Or, the prosecutor can proceed to a public trial. Even after a conviction, the prosecutor can offer recommendations regarding sentencing, including the possibility of probation or a suspended sentence, and later, concerning the individual's suitability for parole.

Given this significant power, there is a correlative duty to act justly, fairly, and impartially. The security of individuals depends on a prosecutor who balances necessary zeal with human compassion, who is dedicated to finding the truth rather than simply securing convictions, who serves the law rather than partisan interests, and who undertakes their responsibilities with humility.

4. Justice Sonia Sotomayor:

Let us consider the immense power held by the prosecutor, a power that can shape a person's very life, their freedom, and their standing in the community, perhaps more profoundly than that of nearly any other individual in our society. The prosecutor's discretion is vast and consequential. They possess the authority to initiate investigations into the lives of our fellow citizens, and depending on their character, this can be done with public pronouncements and insinuations, whether subtle or overt. Or, a prosecutor might choose a quieter path, interviewing those close to the citizen. The prosecutor can order arrests, present cases to the grand jury behind closed doors, and based solely on their account of the facts, bring about an indictment and the detention of an individual awaiting trial. The prosecutor can also decide to dismiss a case before it even reaches trial, leaving the defense without an opportunity to be heard. Or, they can proceed to a public trial. Even after a conviction, the prosecutor's influence continues, as they can make recommendations regarding sentencing, including whether an individual should receive probation or a suspended sentence, and later, on the crucial question of parole.

This extraordinary power carries with it an equally weighty responsibility: to be just, fair, and impartial in all actions. The safety and well-being of our citizenry rely on the prosecutor who tempers their zeal with empathy, who seeks not merely to secure convictions but to uncover the truth, who serves the law and not any narrow agenda, and who approaches their vital task with a sense of humility.

5. Justice Elena Kagan:

The prosecutor occupies a position of remarkable control over individual lives, liberties, and reputations, a degree of influence arguably unmatched by any other figure in our legal system. The scope of this discretion is substantial. A prosecutor can initiate investigations into citizens, and depending on their approach, these inquiries might be accompanied by public statements and implications, whether direct or nuanced. Alternatively, a prosecutor could opt for a more understated method, such as interviewing a citizen's acquaintances. The prosecutor has the authority to order arrests, to present cases to the grand jury in a private setting, and based on their singular presentation of the facts, to cause a citizen to be indicted and held for trial. The prosecutor may also choose to dismiss a case before trial, thus preventing the defense from offering its perspective. Or, they may proceed with a public trial. Even after a conviction, the prosecutor can make recommendations regarding sentencing, including the possibility of probation or a suspended sentence, and subsequently, concerning an individual's eligibility for parole.

This significant power entails a corresponding obligation to act with justice, fairness, and impartiality. The security of our society depends on a prosecutor who balances necessary zeal with human understanding, who is committed to the pursuit of truth rather than simply securing convictions, who serves the law and not partisan ends, and who approaches their work with humility.

6. Justice Neil Gorsuch:

Consider the prosecutor, an officer wielding perhaps the most significant authority over a person's life, liberty, and good name in our land. His discretion is vast. He may direct the investigation of citizens, and should he be so inclined, do so with public pronouncements and intimations, whether veiled or plain. Or, the prosecutor might pursue a more reserved course, simply interviewing a citizen's friends. He can command arrests, present cases to the grand jury in secret session, and based on his account alone, secure an indictment and detention pending trial. He may dismiss the case before trial, leaving the defense unheard. Or he may proceed to a public trial. Even upon obtaining a conviction, the prosecutor may recommend a sentence, probation or its suspension, and later, a prisoner's suitability for parole.

This power carries with it a profound duty: to be just, fair, and impartial. A citizen's security rests in the prosecutor who tempers zeal with human kindness, who seeks truth, not merely a conviction, who serves the law, not factional aims, and who approaches his task with humility.

7. Justice Brett Kavanaugh:

The role of the prosecutor involves a significant degree of control over an individual's life, liberty, and reputation, perhaps more than that of almost any other actor in our system of justice. This discretion is substantial. A prosecutor has the authority to initiate investigations into citizens, and depending on the circumstances and their judgment, this can involve public statements and implications, whether direct or indirect. Alternatively, a prosecutor might choose a more discreet path, such as interviewing a citizen's acquaintances. The prosecutor can order arrests, present cases to the grand jury in a confidential setting, and based on their presentation of the facts, cause a citizen to be indicted and held for trial. The prosecutor also has the option to dismiss a case before trial, thus preventing the defense from having its voice heard. Or, the prosecutor can proceed to a public trial. Even after a conviction, the prosecutor can offer recommendations regarding sentencing, including the possibility of probation or a suspended sentence, and later, concerning an individual's suitability for parole.

With this considerable power comes a corresponding responsibility to be just, fair, and impartial. The safety of our citizens relies on a prosecutor who balances a necessary zeal for law enforcement with fundamental human kindness, who seeks to uncover the truth rather than merely to secure convictions, who serves the law and not partisan purposes, and who approaches their important work with humility.

8. Justice Amy Coney Barrett:

The prosecutor holds a position of considerable authority over the lives, liberties, and reputations of individuals within our society, a degree of control perhaps unmatched by most other actors in our legal framework. This discretion is significant. A prosecutor can initiate investigations into citizens, and depending on their approach, this may involve public statements and implications, whether explicit or implied. Alternatively, a prosecutor might choose a more reserved course, such as interviewing a citizen's friends. The prosecutor possesses the authority to order arrests, to present cases to the grand jury in a closed proceeding, and based on their singular presentation of the facts, to cause a citizen to be indicted and detained pending trial. The prosecutor may also elect to dismiss a case before trial, thereby precluding the defense from presenting its perspective. Or, the prosecutor may proceed to a public trial. Even following a conviction, the prosecutor can offer recommendations regarding sentencing, including the determination of probation or a suspended sentence, and subsequently, to assess an individual's suitability for parole.

This substantial power is accompanied by a commensurate duty to uphold principles of justice, fairness, and impartiality. The security of the citizenry rests upon the prosecutor who tempers a necessary zeal with an understanding of humaneness, who prioritizes the pursuit of truth over the creation of victims, who serves the dictates of the law rather than partisan objectives, and who approaches the responsibilities of the office with appropriate humility.

9. Justice Ketanji Brown Jackson:

Let us reflect on the profound influence wielded by the prosecutor, an individual who holds perhaps the greatest power over a person's life, their freedom, and their standing in our community. This discretion is extensive and carries significant weight. The prosecutor has the authority to initiate investigations into the lives of individuals, and depending on their approach, this can involve public statements and implications, both direct and indirect. Alternatively, a prosecutor might choose a more nuanced path, such as engaging in interviews with a citizen's acquaintances. The prosecutor can order arrests, present cases before the grand jury in the confidential space of its proceedings, and based on their singular presentation of the facts, bring about an indictment and the detention of an individual awaiting trial. The prosecutor can also decide to dismiss a case before it reaches trial, thus preventing the defense from having an opportunity to be heard. Or, they can proceed to a public trial. Even after a conviction, the prosecutor's role continues, as they can offer recommendations regarding sentencing, including the determination of probation or a suspended sentence, and later, on the critical matter of parole.

This extraordinary power demands an equally profound responsibility: to act with justice, fairness, and impartiality in every decision. The safety and well-being of our community depend on a prosecutor who balances their commitment to the law with a deep sense of human kindness, who is dedicated to the pursuit of truth rather than simply securing convictions, who serves the law and not any particular agenda, and who approaches their vital work with humility.

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[1] "The Federal Prosecutor," delivered at the Second Annual Conference of United States Attorneys on April 1, 1940, https://www.roberthjackson.org/speech-and-writing/the-federal-prosecutor/

It also makes me wonder: how prevalent is the practice of publishing articles actually written by an AI program? And is there anything wrong with it if it’s the result of the creative process of drafting interesting prompts? It is certainly not plagiarism. Read this and give me your thoughts. [NOTE: this paragraph was not written by an Artificial Entity and is totally the product of my own mind—which of course a sentient AE would say!]

The Tangled Web of Justice: Comparing Ulbricht's Pardon with the Specter of SBF's Potential Clemency

The recent pardon of Ross Ulbricht, the creator of the Silk Road website, by President Trump has reignited a complex debate about justice, punishment, and the limits of executive clemency. Ulbricht, convicted in 2015 on seven counts related to his operation of the dark web marketplace that facilitated over $183 million in illegal drug sales using Bitcoin (Al Jazeera), had been serving a life sentence plus 40 years. Trump, in announcing the pardon, called Ulbricht’s punishment "ridiculous" and bizarrely linked his prosecution to those he accused of weaponizing the government against him (Congressman Lloyd Doggett).

This act of clemency, fulfilling a pledge to libertarians and cryptocurrency enthusiasts who long advocated for Ulbricht's release (Cato Institute), now casts a long shadow over the potential future of another high-profile convicted felon in the cryptocurrency space: Sam Bankman-Fried.

Bankman-Fried, the founder of the now-collapsed FTX exchange, was convicted in 2023 of seven counts of wire and securities fraud and money laundering related to the misappropriation of billions of dollars of customer funds (The Independent). He received a 25-year prison sentence and is currently appealing his conviction.

While the crimes of Ulbricht and Bankman-Fried both intersect with the world of cryptocurrency, their nature and scale differ significantly. Ulbricht’s Silk Road facilitated a vast illegal drug trade, a crime with direct and often devastating consequences for individuals and communities. Prosecutors also alleged, though he was never convicted of such, that Ulbricht solicited murders related to his operation (Cato Institute). Bankman-Fried’s crimes, while also involving substantial financial harm, centered on the fraudulent misuse of customer deposits within his cryptocurrency exchange.

Despite these differences, a narrative appears to be emerging that could pave the way for a potential pardon for Bankman-Fried. Recent reports indicate that Bankman-Fried and his allies are actively lobbying for a pardon from President Trump (PYMNTS.com). This effort reportedly includes reaching out to Washington D.C. lobbyists and consulting with Kory Langhofer, an Arizona lawyer who worked on Trump's previous presidential campaigns (The Independent).

Disturbingly, there are suggestions that this lobbying may extend to direct engagement with Trump's inner circle. While concrete evidence remains elusive, the New York Times and other outlets have reported on the efforts of Bankman-Fried’s parents, both Stanford Law professors with Democratic ties, who are reportedly consulting with Langhofer. Whether this consultation has translated into direct contact with Trump or his staff at Mar-a-Lago remains unconfirmed, but the possibility certainly raises eyebrows and warrants careful scrutiny.

The pursuit of a pardon is not unprecedented for individuals with connections or perceived political alignment. Consider the case of Philip Esformes, a Florida healthcare executive convicted in 2019 of a staggering $1.3 billion Medicare and Medicaid fraud scheme. He was serving a 20-year sentence when, in December 2020, President Trump commuted his sentence after only roughly three and a half years in prison (CBS News). While the White House statement at the time cited Esformes' devotion to prayer and declining health, the commutation of such a massive fraudster so soon after conviction raised serious questions about the criteria and motivations behind such acts of clemency.

Examining past pardons can offer insights, though not definitive proof, into potential strategies. News reports have detailed how some seeking pardons have leveraged political connections, offered endorsements, or even had prominent figures advocate on their behalf (PBS NewsHour). In Bankman-Fried's case, his recent jailhouse interview with former Fox News commentator Tucker Carlson, where he praised Republicans and claimed a shift away from Democrats (The Independent), appears to be a calculated move to curry favor with the former president and his base.

Furthermore, Bankman-Fried co-authored an opinion piece in The Washington Post supporting Trump's proposed sovereign wealth fund, another potential attempt to align himself with the former president's policy positions (Slate).

The power to pardon is a constitutionally granted prerogative (Article II, Section 2 of the U.S. Constitution), intended as a tool for justice and mercy (Protect Democracy). However, the perception that pardons can be bought or influenced by political expediency undermines the very principles of justice and equal application of the law.

As the legal process unfolds for Sam Bankman-Fried, and as the echoes of Ross Ulbricht's pardon continue to reverberate, the question of whether political connections and perceived alignment with the former president will play a role in his fate remains a serious concern. The meticulous pursuit of justice demands transparency and adherence to established legal principles, not the whisper of backroom deals in the halls of power or the gilded rooms of Mar-a-Lago. Any indication that the scales of justice might be tipped by political maneuvering rather than the merits of the case would be a profound disservice to the victims of Bankman-Fried’s crimes and a dangerous precedent for the rule of law.

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The Court found that the government’s claims, made in pleadings and publigcly, that Garcia was a convicted felon and that he was a member of a terrorist organization were lies (of course, the court used more polite language that meant the same thing). The Court ordered Garcia returned.

The government appealed. The Supreme Court upheld the order. Now, like a child who goes to their mother to ask that she tell him he can’t go out to play so he can tell his friends his mom won’t let him, the President has appeared with the President of El Salvador who states the returning Garcia is preposterous. PREPOSTEROUS. Returning a person who was lawfully in the United States who is not charged with any crime in El Salvador is preposterous.

I know, I can go on and on.

But here is the upshot: the emis.

If a person lawfully in the United States can be picked up and removed from the country and placed in one of the most dangerous prisons in the world, no one is safe from our government, and no court can stop it; we have finally arrived at a dictatorship. Full stop.

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· As societies evolved and developed, the relationship between law and justice has become more complex.

· The Romans pioneered the practice of systematizing and organizing laws that were later adopted throughout the Western world.

Some values our children are born with—at least, that’s how it seems to me—and there is scientific evi­dence to support them. One of the most evident is an innate sense of justice.

A child erroneously disciplined for breaking a glass pitcher, doesn’t need to be told they have been wrongfully accused and punished. Their little sister, who did break the pitcher and fesses up to it, doesn’t need to be told that her older brother was treated unfairly. A child who tattles on another for kicking someone else, doesn’t need to be told they should tell the teacher (if anything, what they learn is not to tattle).

When people talk about justice, they usually have one of two conceptions in mind. They may ask what makes a just society, either in terms of how it is organized and run or how rights and wealth are distributed. They may also ask how conduct that harms people or society should be punished and how to protect the innocent from the guilty. This essay is concerned with the evolution of law in the second sense: crime and punishment.

It is not necessary to tell people that certain conduct is wrong. As with the example of what children innately know, with the exception of those who are mentally impaired, people know that killing another is wrong, that stealing from another is wrong, that assaulting another is wrong, and that rape and incest are wrong. Possibly, this is a function of empathy, which neuroscience has determined is hardwired into our brains. We feel suffering, and mirror neurons cause us to sense the suffering of others when they have been victimized. Thus, a legal code is unnecessary to establish the wrongfulness of the most egregious acts, what the legal profession calls malum in se crimes. However, a legal code is necessary to inform people what punishments will be meted out to those violating the law in order to deter such conduct.

Rulers have always imposed their will on others. At some point in the history of people living together, rulers had to expand their authority over a broad range of conduct to prevent chaos and conflict within their tribe.

Archeologists have discovered records of laws that go back as far as three to four thousand years. The most famous and complete of these records is the Code of Hammurabi. Hammurabi was the King of Babylon and reigned from 1792 to 1750 B.C.E. His Code is a collection of 282 rules written on a massive black pillar discovered by archeologists in 1901. Although the Code does impose punishment for a small number of crimes, most of the Code regulates family and economic relationships. There were even rules that applied to medical malpractice. A physician who killed a wealthy patient might have his hands cut off, although only financial compensation was owed for killing a slave.

From other records, historians know much more about how the laws were applied in ancient Mesopotamia (which included Babylon). Judges heard cases, scribes often recorded events, witnesses testified under oath, and as Hammurabi’s Code provided, a person’s guilt had to be based upon evidence, an early version of innocent until proven guilty.

Hammurabi’s views of justice are reflected in the rules themselves. His choice of which rules to make public dramatically reflects what activities were most disruptive to society at that time. There was a price to be paid for making a false accusation—death (Rule 3). A judicial error could result in a fine against the judge and removal from the bench (Rule 5). A man who abandoned his wife was required to compensate her and provide support for her children, and she was allowed to “marry the man of her heart” (Rule 137). Rules 128—195 apply to relationships between a wife, her husband, their children, and the wife’s father. Rules 215—223 all address compensation for medical malpractice. Not surprisingly, breaking into a house to steal (Rule 21) and robbery (Rule 22) are capital offenses, but murder is only mentioned in the special case of a man and woman who kill their cheating spouses (Rule 153). When one caused injury to another, some of the Code’s provisions called for an eye for an eye punishment (Rules 196, 197, 200), but in many instances, monetary compensation to the victim or their master was sufficient (Rules 198, 199, 201). While a false accusation made before elders could be punished by death (Rule 3), the elders could just impose a fine on the accuser (Rule 4).

Some scholars have argued that Hammurabi’s Code influenced the laws set down in the first five books of the Hebrew Bible (the Torah), but the 613 laws spread throughout these books are far more comprehensive: they address everything from moral law, social laws, dietary laws, religious and ceremonial laws. In Jewish tradition, these laws were given to Moses at the same time that God gave him the Ten Commandments. These first ten commandments are like the Bill of Rights to the United States Constitution in that they impose rights and obligations, but not punishments nor any means for enforcement.

Moreover, the Mosaic laws went beyond specifying punishment; they also included substantive and procedural protections.

While the penalty for an intentional killing was death (Numbers Chapter 35: v. 16-21), to prevent relatives from seeking revenge for the unintentional killing of their loved ones, six cities were named a refuge for the killer to flee to and be protected. (v. 6, 11-15, 22-25). Moreover, a person could not be put to death based on the testimony of just one person (v. 30).

Finally, in Genesis, the Bible provides an ethical context for the development of the law. In the story of God’s destruction of Sodom and Gomorrah, Abraham says to God that the ruler of the world must rule justly and that God should spare the guilty for the sake of the innocent. (Genesis, Chapters 18 and 19). This is the first articulation of the idea that justice had to be based on principle, not simply the will of those in charge.

The Romans pioneered the practice of systematizing and organizing laws that were later adopted throughout the Western world.

The first effort to codify Roman law occurred between 451 and 449 B.C.E and was engraved on twelve tablets placed in the Forum of Rome. This code is known as the Twelve Tablets. Over the next thousand years, a great number of laws were created by various Roman institutions which led Byzantine emperor Justinian I to create two commissions to compile, simplify, and organize these laws into what became known as the Corpus Juris of Justinian. This expression of Roman Law influenced legal codes in continental Europe from that time until today.

Although there were orators in ancient Greece who could argue on behalf of parties, the first real professional class of lawyers emerged in Rome. They were professionally trained, could be compensated for their work (unlike in Athens), played a critical role in the administration of justice, and in some case, like Cicero, were celebrities.

Over the next 800 years, the meaning of justice was left to philosophers and theologians to debate and, as noted above, focused on the elements of a just society.

The Magna Carta of 1215 was the next legal code to profoundly impact the evolution of justice. Rebellious English nobles threatened war against King John if he did not agree to limits on his power, particularly as to the collection of taxes from nobles and the church. However, the document King John was compelled to agree to went much further, addressing other abuses by the Crown.

The Magna Carta contained provisions that promoted justice for free men (still only a small segment of the population). Property disputes were to be considered in local county courts, and judges were sent to each court four times a year. (Para. 18). (Later changed to once a year in the 1225 revision). Persons could not be punished for violations of the law on an “unsupported complaint” without credible witnesses. (Para. 38). Most famously, Para. 39 prohibited taking or imprisoning freemen without the “lawful judgment of his peer or by the law of the land,” thereby creating the writ of habeas corpus to contest such action by the sheriff. But most importantly, the document established the principle that the sovereign was subject to the rule of law.

They legal systems in Great Britain and Continental Europe were significantly different. In Great Britain, substantive and procedural law were created by judges in a gradual process known as the Common Law. Europe continued to follow Roman Law, which limited judges to whatever legal codes were declared by a nation’s rulers.

But in both systems, philosophers and theologians increasingly advocated for the rights of all people, including those accused of crimes. Their ideas influenced political events as reflected in the English Bill of Rights of 1689 which prohibited cruel and unusual punishment, excessive bail, and arbitrary prosecution and created the rights to a fair trial and to be judged by one’s peers. Similar rights were declared by the National Assembly of France at the beginning of the French Revolution in the Declaration of the Rights of Man of 1789. These include provisions prohibiting arbitrary arrest and requiring a speedy disposition of allegations (Clause 7), punishment only for offenses prohibited by law (Clause 8) and the presumption of innocence (Clause 9).

In the United States judges have repeatedly limited statutes that resulted in arbitrary enforcement. For instance, while there is a general principle that “ignorance of the law is no excuse,” the right to due process of law recognized in the Constitution of the United States has been interpreted by our courts to require that laws provide fair notice of what conduct is proscribed.

While the Supreme Court has receded from the expansive view of the Fourth and Fifth Amendments taken in the 60s and 70s, from the 80s until today, the court has struck down or severely limited statutes enacted by Congress that the court considered overly broad and likely to punish innocent conduct. Moreover, in the last 20 years, the Court undermined Congressional efforts to limit judicial discretion in determining the most appropriate punishment at sentencing.

For victims of crimes, justice means compensation for the harm they suffered and punishment for the person who harmed them. This is true throughout the world.

For the accused, in the United States, justice includes the constitutional rights found in the Fifth and Sixth Amendments—the right to a speedy trial, the right to effective assistance of counsel, the right to remain silent, the right to confront a witness against them, and the right to compulsory process of witnesses compelling their attendance and production of evidence for use in their defense at trial.

As we have seen, such rights are not limited to the United States; they are guaranteed to billions of people across the world, but they are also denied to billions of others.

Today, people can lose their freedom for conduct that was inconceivable hundreds and certainly

thousands of years ago. As societies have evolved and become more complex, so have the offenses. Money laundering, drug trafficking, securities fraud, and violations of health care and environmental regulations were simply not crimes in the past. But what has not changed is the principle that only those who are guilty deserve to be punished, and procedures must exist to ensure that the innocent are not punished along with the guilty, principles that are innate to the very notion of justice.

About the Author

Jon May began his career in the Public Defender’s office in West Palm Beach, Florida. As an attorney, he ran the appellate division of the United States Attorney’s Office in the Southern District of Florida, worked in federal criminal defense, and investigated white collar crime. In 2022, Jon May started his own firm Jon May-Team Defense, which is now called Creative Criminal Defense Consultants.

Published in Experience Volume 35, Number 3, ©2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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On Fox News Sunday, Bondi explained that Reuveni had violated a memo she issued on September 5, 2024 warning government prosecutors that failure to represent the government zealously would result in sanctions. She said that Reuveni should have either not taken the case or not made the statement he did.[4]

Whatever zealous representations entails, it does not permit attorneys to violate state ethics rules. When the Department of Justice took the position that ethics rules did not bind federal prosecutors, Congress enacted 28 U.S.C. § 530B, which made state ethics rules applicable to government attorneys.

Ethical standards for attorneys for the Government

(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.

(b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.

(c) As used in this section, the term `attorney for the Government’ includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and also includes any independent counsel, or employee of such a counsel, appointed under chapter 40 [28 USCS §§ 591 et seq.].

The Local Rules for the United States District Court for the District of Maryland state:

RULE 704. RULES OF PROFESSIONAL CONDUCT

This Court shall apply the Rules of Professional Conduct as they have been adopted by the Supreme Court of Maryland.

RULE 703. ATTORNEYS SUBJECT TO DISCIPLINE

Any attorney practicing before this Court or who has practiced before this Court in any way shall be deemed thereby to have conferred disciplinary jurisdiction upon the Court for any alleged misconduct of that attorney. To the extent appropriate, all Rules set forth herein as applicable to attorneys admitted to practice before the Court shall also be deemed applicable to and enforceable against any attorney participating in any manner in any proceeding in this Court, whether or not admitted to practice before the Court.

Unquestionably, Department of Justice Attorney Erez Reuveni was subject to the Maryland Rules of Professional Conduct. Those rules provide:

RULE 19-303.3. CANDOR TOWARD THE TRIBUNAL (3.3)

(a) An attorney shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the attorney;

* * * * * * * * * * *

(b) The duties stated in section (a) of this Rule continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 19-301.6 (1.6).

It is clear from what Reuveni stated at the hearing that he was unable to support the government’s previously stated explanation for Garcia’s removal as an “administrative error.” To the extent he had filed pleading stating that it had been a “administrative error,” he was ethically bound to correct that statement. Equally clear is the duty to remain on the case so that the error could be corrected. Contrary to Bondi’s assertion, withdrawing from the case in order to prevent the erroneous statement from being corrected was not an option, nor was remaining on the case and allowing the court to continue to be misled.

In regard to Ms. Bondi. She is an attorney admitted to practice in the State of Florida. As such she is subject to the Rules Regulating the Florida Bar. Rule 4, the Rules of Professional Conduct state:

RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL

(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

Comment

Representations by a Lawyer

[A]n assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.

Here the Attorney General sanctioned an attorney for making a disclosure which he was obligated to do in order to correct an affirmative misrepresentation. In doing so she sent a clear message to attorneys throughout the government that they were prohibited from complying with ethical rules that required they correct false representations made to a court.

Ms. Bondi’s unethical conduct goes far beyond the particulars of the Garcia case because they implicate the conduct of government lawyers in every matter before the federal courts. It is nothing short of an effort to circumvent 28 U.S.C. § 530B by asserting a duty to promote the interests of the Executive Branch even if doing so requires misleading the court and disregarding ethical rules.

In United States v. Tapp, 2008 U.S. Dist. LEXIS 44212, *31 (S.D. Ga. 2008), Chief Judge William T. Moore Jr. observed.

The traditional understanding about state and federal prosecutors is that they should have heightened ethical responsibilities. Traditional thinking is that federal prosecutors should represent the government in a loyal and disinterested manner. They are charged with an overarching duty to seek justice.

The American Bar Association concurs:

ABA Prosecution Function

Standard 3-1.4 The Prosecutor’s Heightened Duty of Candor

(a) In light of the prosecutor’s public responsibilities, broad authority and discretion, the prosecutor has a heightened duty of candor to the courts and in fulfilling other professional obligations.

The Court’s Memorandum Order demonstrates that the Department of Justice cares not one whit whether it has the legal authority to remove a person from the United States and place them in one of the most dangerous prisons in the world, To achieve its ends, it will even claim that a person has a criminal record, when there is no evidence to support that claim, and is a terrorist, when it has no credible to support that claim either. And once placed in the custody of a foreign government, it will argue that it lacks the power to obtain their return.

Compared to this conduct, an ethical violation may seem a minor infraction. But with the federal government under the control of men and women for whom the law means nothing, the States may be the only thing that can stand in their way.

[1] Memorandum Order, Kilmar Armando Abrego Garcia v. Kristi Noem, Case No. 8:25-cv-00951-PX, Document 31 (DCDMd 04/06/25), p1.

[2] Defendants’ Corrected Memorandum Of Law In Opposition To Plaintiffs’ Emergency Motion For Temporary Restraining, Order, Case No. 8:25-cv-00951-PX, Document 12-1, (DCDMd 04/01/25

[3] Id. p. 2, See Hr’g Tr., Apr. 4, 2025, 25: 13–14 (Mr. Reuveni: “We have nothing to say on the merits. We concede he should not have been removed to El Salvador.”); see Hr’g Tr., Apr. 4, 2025, 34:25– 35:5 (The Court: “[W]hat basis is he held? Why is he [in CECOT] of all places?” . . . Mr. Reuveni: “I don’t know. That information has not been given to me. I don’t know.”)

[4] The Hill, https://thehill.com/regulation/court-battles/5235778-doj-suspends-lawyer-deportation-case/:

He was put on administrative leave by Todd Blanche on Saturday. And I firmly said on Day 1, I issued a memo that you are to vigorously advocate on behalf of the United States. Our client in this matter was Homeland Security — is Homeland Security. He did not argue. He shouldn’t have taken the case. He shouldn’t have argued it, if that’s what he was going to do. He’s on administrative leave now,” she said. “You have to vigorously argue on behalf of your client.

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To most Americans unfamiliar with how the criminal justice system works, this seems like a great deal of protection for the accused. But like anything else, the devil is in the details. Consider the following:

Under the federal rules of criminal procedure, prosecutors are not required to identify their witnesses before trial.[9] Only where a prosecutor has provided a benefit to the witness, such as an agreement to drop charges or a recommendation of a lower sentence, or where the prosecutor knows of evidence impeaching the witnesses credibility, such as the witness's criminal record, must prosecutors disclose such information, and even then, prosecutors can wait to disclose this information until shortly before the start of trial, significantly limiting defense counsel's ability to investigate whether there is more impeachment evidence available or whether there are other undisclosed benefits.[10]

Prosecutors have the authority to compel people to speak to them and answer their questions. They do this through the grand jury's subpoena powers. Those same procedures are used to compel the production of documents and other physical evidence the prosecutors need during their investigation.

Defendants have no such right. They can compel a person to appear at their trial, but they cannot compel this individual to answer questions before trial. Consequently, unless the witness agrees to speak to defense counsel before trial, counsel doesn't have detailed knowledge what the witness is going to say, or the opportunity to investigate whether the witness is lying or mistaken in time to confront them.

(3) A defendant is entitled only to a copy of his own statements given to law enforcement.[11] A defendant is not entitled to see a witness's statement before the start of trial, and even then, only after the witness has testified.[12] Prosecutors generally provide such statements before the witness takes the stand, but only to avoid delaying the proceedings. BUT, and here is the devil again, federal agents do not take "statements" from witnesses. They take notes.[13] So only if the witness has testified before a grand jury will their prior testimony be given to the defense. AND there is no requirement that the Government examine any of its witnesses before a grand jury.

(4) Rule 16 of the Federal Rules of Criminal Procedure requires that prosecutors provide the defense all documentary and physical evidence in their possession that pertains to the allegations against the accused, but they are not required to identify what evidence they intend to introduce at trial. What this means is that prosecutors can drop terabytes of material onto the defense and tell defense counsel to go fish.

Together, (1), (2), (3), and (4) mean that the average defendant in a federal criminal case goes into Court not knowing the identities of some or all of the Government's witnesses, not knowing what the witnesses have told the prosecutors, and having to prepare their defense without even the most basic tools afforded civil litigants: subpoenas, depositions, the identities of the witnesses. The right to effective assistance of counsel is thus reduced to a right to have counsel do their best with what they get.

There is no reason why the Department of Justice could not require something akin to the kind of discovery permitted in Florida. Maybe not full-fledged depositions, but interrogatories to the Government's witnesses in any case set for trial. And the pretrial disclosure of a witness's statement, whether given under oath or not. Certainly, the defense should receive the reports of the agents who conducted the investigation. All of this is available in Florida.

Attorney General Pam Bondi, who was the Attorney General of the State of Florida, John Lauro, President Trump's lead attorney in the WDC prosecution, whose office is in Tampa, Florida, and FBI Director Kash Patel, who started his career in the Miami-Dade County Public Defender’s Office, have extensive experience with Florida’s rules of criminal procedure. They know that the greater discovery offered in Florida, including depositions, has rarely impeded the state's ability to prosecute and convict those accused of crime.

Why are prosecutions so tilted in favor of the Government? The Government claims it is to prevent defendants from intimidating witnesses and to thwart efforts by defendants and their lawyers from manufacturing evidence and arguments that could subvert the truth.

Forty years ago, an effort was made to revise the rules requiring witness identities be disclosed to the defense. Despite unrefuted evidence from federal courts in California that such a rule does not interfere with the administration of justice, the Department of Justice was able to kill this reform in Congress.[13]

Witness intimidation, witnesses killed. It happens. But it occurs despite the limitations on pretrial discovery. The identities of witnesses must be disclosed at trial before the witness testifies (though sometimes not their real names). Most often, in those instances where a witness is "gotten to" before trial, it is because the defendant knew who they were, usually because they were the defendant's friends or associates or, in the case of white-collar offenses, someone they worked with.

However, providing real balance in federal prosecutions does not mean that the lives of witnesses will be put in jeopardy or that criminals will now walk because of better-prepared defense counsel. In those cases where there is a serious claim that disclosing a witness’s identity or the information they provided could endanger their life, the Government could go to the Court in camera (that is, out of the public eye) and ex parte (out of the presence of the defendant and their attorney) and seek a protective order. That is precisely what happened with Sam Bankman-Fried, cryptocurrency fraudster, who had his bond revoked because he attempted to intimidate witnesses.

When it is in the government's interest to make "open file discovery," the government doesn't have a problem doing so. In your prosecution in Washington, the Special Prosecutor provided you and your attorneys:

• grand jury transcripts and associated exhibits through the date of the indictment;

• witness interview recordings, transcripts, and reports, including agent notes, along with records used during the interviews;

• the vast majority of materials obtained through search warrants, 2703(d) orders, and grand jury subpoenas; and

• unredacted materials obtained from other governmental entities, including the House Select Committee to Investigate the January 6th Attack on the United States Capitol and the United States Secret Service.

Not only that, the prosecutors said that:

The Government went to great lengths to organize these materials in a user-friendly manner, prepare them in formats ready to be loaded into a document review platform, and create detailed logs to guide the defendant’s review.[14]

Thus, had the case gone to trial, you would have learned who each witness was and what each witness would say. This, even though various prosecutors had accused you of attempting to intimidate witnesses.

Although the current rules of criminal procedure do not provide for the protections recommended in this article, your Justice Department has the authority to promulgate such rules and direct that all federal prosecutors abide by them.

A host of other reforms are needed. If you want to talk about them, I am just down the road in Boca. Take a ride and I'll buy you lunch at McDonalds—my treat!

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[1] Gideon v. Wainwright, 372 U.S. 335, 344 (1963);

[2] Skilling v. United States, 561 U.S. 358, 378 (2010).

[3] Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979).

[4] Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

[5] Coy v. Iowa, 487 U.S. 1012 (1988).

[6] Taylor v. Kentucky, 436 U.S. 478, 483-86 (1978); Kentucky v. Whorton, 441 U.S. 786 (1979).

[7] McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).

[8] Kyles v. Whitley,

[9] Rule 16, Federal Rules of Criminal Procedure, governs what information the Government must disclose to the defense before trial. This rule does not require a witness list

[10] The Justice Manual, Section 9-5000D.2 states:

Impeachment information. Impeachment information, which depends on the prosecutor's decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the prosecution to proceed efficiently. In some cases, however, a prosecutor may have to balance the goals of early disclosure against other significant interests—such as witness security and national security—and may conclude that it is not appropriate to provide early disclosure. In such cases, required disclosures may be made at a time and in a manner consistent with the policy embodied in the Jencks Act, 18 U.S.C. § 3500.

[11] Rule 16(a)(1) FRCP.

[12] Rule 26.2 FRCP.

[13] See Emma Cecil’s and Carl Lietz’s excellent article discussing the history of the reform effort, “Avoiding Trial by Ambush: Why It’s Time to Revise the Federal Rules of Criminal Procedure to Require the Parties to Disclose Witness Lists.” The Federal Lawyer, p. 8, March/April (2019).

[14] Government’s Response to Court’s August 3, 2023 Minute Order, United States v. Trump, 23-cr-00257 p. 5, United States District Court, District of Columbia (August 10, 2023)