Dan Greenberg
I am grateful that Pam Bondi is no longer the attorney general of the United States. Her refusal to abide by the norms of the practice of law during her DOJ tenure was regularly astonishing. Her ethical casualness was apparent on her first day in office when she issued a memo ordering DOJ attorneys to “zealously advance … their client’s interests,” including “vigorously defending presidential policies and actions against legal challenges,” and threatened discipline or termination for anyone who refused.
That line of argument collapsed the distinction between the loyalty DOJ attorneys purportedly owe the president and the loyalty they owe to their duty to enforce and defend the Constitution and the laws of the United States—and that ethical collapse had many repercussions. Consider the DOJ’s order to drop corruption charges against former New York City Mayor Eric Adams—apparently in exchange for Adams’s cooperation on immigration enforcement policies. Six DOJ prosecutors promptly resigned in protest.
Or consider the firing of DOJ attorney Erez Reuveni: his termination appeared to be driven by his admission in open court that a Maryland resident had been erroneously deported to a Salvadoran prison, and it is reasonable to conclude that he was fired for complying with his ethical duty to be candid with the tribunal. Or consider the implications of Trump’s public order to Bondi to indict Letitia James, James Comey, and Adam Schiff.
Bondi’s resulting use of the DOJ to settle political scores created an extraordinary chain of events: the termination of the top career prosecutor in the Eastern District of Virginia after he determined that the evidence could not support indictments, the unlawful installation of one of Trump’s personal attorneys as the district’s top prosecutor, the subsequent judicial dismissal of the cases she brought, and the repeated refusal of grand juries to re-indict the targets of Trump’s ire.
Bondi’s public behavior sometimes departed not only from legal norms but also from the norms of civilized behavior that people expect from their public servants. Here is a brief portrait of her most recent appearance before the House Judiciary Committee:
Bondi at one point went on a wide-ranging, animated, minutes-long defense of Trump in which she portrayed herself as the president’s chief protector and strayed far beyond her actual job as the nation’s chief law enforcement officer.
“You sit here and you attack the president, and I am not going to have it and I am not going to put up with it,” Bondi shouted during an extended speech that even praised the president for a recently surging Dow Jones Industrial Average.
She painted the president as a victim of baseless impeachments and investigations, incorrectly stating at one point that former special counsel Robert Mueller had not found foreign interference in the 2016 presidential election.
Bondi’s departure from professional norms was accompanied by the DOJ’s unprecedented mass firing of line prosecutors and—more emblematically—her termination of the head of the DOJ’s Office of Professional Responsibility and its chief ethics officer. More recently, Bondi proposed a new ethics rule that was, by and large, a power grab: it would establish something like monopoly control over the DOJ’s investigations into its own attorneys’ professional conduct, thus forcing state ethics authorities—the traditional custodians of such investigations—to delay or end their own probes of misconduct.
My colleagues and I understood Bondi’s proposed rule as an attempt to shield DOJ’s lawyers from some of the ethical obligations that lawyers ordinarily follow, and we recently provided two different regulatory comments on that proposed rule. The comment my colleagues Mike Fox and Matthew Cavedon provided explains in detail how the proposed rule, if enacted, would further insulate DOJ attorneys from the weak system of ethics oversight that DOJ attorneys currently work under. The comment I provided provides an array of arguments that explain the rule’s defects: the language of the rule is vague, and its practical effect is therefore somewhat mysterious; the rule cannot be justified by the statute it is ostensibly based on; the rule’s consequences—the impairment of state ethics enforcement—would be counterproductive; the rule cannot be justified by the reasons given for it in the rule’s notice document; and the rule is incompatible with presidential Executive Order 13132 on federalism and with federalist concerns generally.
In short, this proposed rule functions as a kind of symbol of the ethical emptiness that Pam Bondi brought to the Department of Justice. To it—and to her—it is proper to say, “Good riddance.”