Do Ethics Rules Require DOJ Lawyers to Buck President Trump’s Executive Orders?

Shortly after his inauguration, President Trump issued several executive orders directing the Attorney General to act in various ways. Some orders directly instruct the Attorney General to seek to overturn Supreme Court precedent, to investigate political prosecutions initiated by the federal government over the last four years, and to temporarily refrain from enforcing the act shutting down TikTok.

Do President Trump’s executive orders infringe on the ethical duties of lawyers within the DOJ? Critics in the press and the academy have charged that Trump is ordering “the justice department [to] handle” his problems and threatening the independence of DOJ. Some scholars argue that the DOJ is independent and has an ethical duty to check the president and follow internal no-contacts policies. Other scholars contend that the D.C. Rules of Professional Conduct may ethically require DOJ attorneys to disobey the president, even in the face of executive orders.

But neither concern should prevent the Attorney General and Department of Justice officials from following Trump’s recent executive orders. As a unitary executive, the president has control over the Justice Department. And the Rules of Professional Conduct may compel DOJ lawyers to comply with the president’s orders.

Several of Trump’s orders direct the Attorney General’s prosecutorial and investigative priorities.

• The president’s executive order on securing our borders directs the Attorney General and the Secretary of Homeland Security to prioritize the prosecution of offenses relating to our borders. The invasion executive order calls upon the Attorney General, in coordination with other officials, to repel, repatriate, or remove any alien engaged in the invasion across the southern border. Another EO directs the Attorney General and the Secretary of Homeland Security to make operational preparations to implement any decision the president makes to invoke the Alien Enemies Act.
• The Foreign Corrupt Practices Act EO directs the AG to review existing FCPA investigations and enforcement actions and cease initiating new ones. The EO notes that the AG can still determine if an individual exception should be made and the instructions apply for only 180 days from the date of the order.
• The “Restoring Freedom of Speech and Ending Federal Censorship” executive order directs the Attorney General, in consultation with the heads of executive departments and agencies, to investigate the federal government's activities over the last four years that have harmed freedom of speech. It also requires the AG to prepare a report with recommendations for appropriate remedial actions and submit it to the president. The weaponization executive order contains similar provisions for political prosecutions over the last four years.
• The order restoring the death penalty and protecting public safety directs the AG to pursue the death penalty for all crimes of sufficient severity, to refer federal inmates for state prosecution, and to provide states with lethal injection drugs. The order also directly requests the AG to try to overrule Supreme Court precedents limiting the authority of state and federal governments to impose capital punishment.
• The TikTok EO instructs the AG to refrain from acting to enforce the act that shut down TikTok and from imposing penalties on companies working with TikTok for 75 days. Professor Josh Blackman points out that this order does not say the statute is unconstitutional, providing no basis for an Article II override. Instead, he argues that it appears to be purely an act of prosecutorial discretion.
• The binary nature of sex EO directs the AG to issue guidance to agencies to protect sex-based distinctions and correct the misapplication of Bostock v. Clayton County to sex-based distinctions in agency activities. The Attorney General and Secretary of Homeland Security are also directed to ensure that men are not detained in women's prisons or detention centers, that the Bureau of Prisons revises its medical care to be consistent with the nature of sex, and that investigations and litigation are prioritized to enforce the rights and freedoms identified.
• Regarding the Second Amendment, the president issued an executive order directing the AG to examine the actions of executive departments and agencies for ongoing violations and submit a proposed plan of action.

In all these EOs, the president directs the Attorney General to do something. Does this violate DOJ’s independence, as critics claim? The Justice Department is not an independent agency. In fact, after Watergate, Congress considered making the Department of Justice an independent agency but declined to do so. So the short answer would seem to be “no.” More fundamentally, under Article II, section three of the Constitution, the president has the constitutional duty to take care that the laws are faithfully executed. As the Supreme Court recently reaffirmed in Trump v. United States, the president may discuss potential investigations and prosecutions with the Attorney General and other Department of Justice officials, and indeed, he is constitutionally responsible for ensuring that they are executing the laws.

But maybe critics are worried about norms rather than technical labels. While no formal laws divide the Department of Justice from the executive, DOJ does have internal policies, some of which emphasize a culture of “independence,” like the no-contacts policy initiated in the Ford administration. However, the no-contacts policy has never meant that the president cannot coordinate with the DOJ. How else could he communicate his views as the chief law enforcement officer to the department tasked with defending his administration’s views?

Part of the concern is that Trump could now weaponize the Justice Department against his enemies, as he argues his predecessor did to him. But a president providing prosecutorial prioritization directives does not transmogrify him into—what some pejoratively would term—a “prosecutor-in-chief.” Notably, President Trump’s executive orders—except for maybe the TikTok one—do not make discretionary prosecutorial decisions for Justice Department officials.

Is it especially concerning if the president communicates his administration’s preferences through an executive order rather than by some other method? It doesn’t seem to be, unless the order is a bill of attainder. The closest thing to a bill of attainder among Trump’s EOs is the national security executive order, which directs the Attorney General to pursue all legal steps to investigate, prosecute, and disrupt efforts by the Iranian government to obtain sensitive information. But the fact that this directive covers national security and foreign policy likely outweighs the potential bill of attainder concerns and places it squarely within the president’s power.

Do professional rules raise any ethical concerns with these EOs? Federal government attorneys are subject to the McDade Amendment and the DC Rules of Professional Conduct. Rule 1.6(k) identifies the client of a government lawyer when not otherwise provided by law, regulation, or order. Oddly, the rule’s language identifies the client as the agency that employs the lawyer, which makes little sense. The DOJ is not the attorney for the DOJ; it represents the executive branch and its agencies.

Further, reading Rule 1.6(k) to mean that the DOJ represents the DOJ would clash with other DC Rules. Rule 1.2(a) allocates the authority for decisions between lawyers and clients. A lawyer shall abide by a client’s decisions concerning the objectives of representation, as required by Rule 1.4, and shall consult with the client on the means by which they will be pursued. If the DOJ is the attorney for the DOJ, then none of the rules about deferring to client decision making are meaningful. However, if President Trump is the DOJ’s client and directs a particular course in litigation, it seems that the DC Rules would require the AG to abide by the objectives spelled out by the president. Recently, Attorney General Pam Bondi issued a memo espousing this view. It refers to executive branch attorneys as the president’s lawyers, who are expected to advance their client’s interests zealously. Despite what critics have claimed, Bondi’s memo makes sense of government lawyers’ ethical obligations, especially when considered alongside the DC Rules.

Moreover, DOJ officials always have the option to resign from their posts, as government lawyers have historically done when they do not feel they can faithfully execute the president’s commands (and indeed as all lawyers must do when they do not feel they can zealously represent their clients). Allegedly, some DOJ officials in the Trump administration have already done this in response to Trump’s directives in the case against New York City Mayor Eric Adams. If DOJ attorneys think they cannot simultaneously fulfill their ethical duties and pursue the client’s objectives, they can leave.

Even assuming the DOJ has an ethical duty of independence, it seems unlikely that Trump’s executive orders create conflict with no-contacts policies or prosecutorial discretion. Moreover, the DC Rules appear to support a view that the president is the client of federal government attorneys. And Trump’s orders do not conflict with the ethics rules because they merely direct the goals of litigation and do not interfere with the lawyers’ preferred means of pursuing those objectives.