In Bald Language…

Here's the rule, which casts the effort as "Ending the Weaponization of the Bar Complaint and Investigation Process" https://t.co/54HHkt8GyQ

— Ben Penn (@benjaminpenn) March 4, 2026

In drafting this proposed rule, the Department considered that State bars have interests that are different from those protected by the Department. For instance, the Department is limited to reprimanding, suspending, or terminating the employment of a Department attorney who has engaged in misconduct, whereas the bar disciplinary authorities may suspend or revoke an attorney’s license to practice law. The proposed rule therefore does not prohibit the State bar disciplinary authorities from imposing additional sanctions if the Department determines that an attorney violated an ethics rule. But it does allow the Department, which has access to information unavailable to any State bar due to various statutory and constitutional privileges, to determine whether such a rule was violated in the first instance. It also deters bad actors from turning the State bar disciplinary process itself into a tool to punish department lawyers and impede an unpopular initiative.

In layman’s terms, the DOJ asserts the authority (the grounds for which are stated elsewhere in the order; and utterly specious) to determine whether a DOJ lawyer has actually committed an ethical violation (which is the ground for bar discipline or disbarment), and only then will it allow the relevant state bar to act on disciplinary actions for DOJ lawyers.

State bars provide objective tribunals (Texas requires a trial for disbarment actions). Because of alleged “weaponization” in the order, the DOJ reviews its own lawyers first.

Which is perfectly fair, right?*

Federal judges can be disbarred after they are impeached and removed from the bench, because they are no longer part of a coequal branch of the federal government. DOJ lawyers are not “coequal.” They are part of the administrative branch, but their positions are established by, and overseen by, Congress. They are employed subject to the condition of being duly licensed in the state where they practice, and in the federal courts (district, appellate, Supreme Court) where they appear. The latter also rests on the proper state license. That licensure is the authority and prerogative of the respective states and courts. The executive branch has absolutely nothing to do with it, and Congress has not indirectly (or even directly) given them that authority.

Mostly because Congress doesn’t have it, either. And Congress can’t delegate authority it doesn’t have.

*There’s another argument, that this “rule” would not allow for due process of law, which is why state bars have to establish third party tribunals for proceedings like disbarment. This rule short circuits due process by allowing DOJ to oversee and determine the conduct of its lawyers.