Michael Millemann and Jed Davis are attorneys who serve as state leads with Lawyers Defending American Democracy in Maine.  

Over 1 million people have commented, overwhelmingly critically, on a proposed federal rule that would give the Department of Justice the remarkable right to halt state ethics disciplinary proceedings against its lawyers. 

Recently, senior officials have faced allegations of committing major ethics violations. 
 
The rule would give the federal attorney general the exclusive “right to review the [ethics] allegations in the first instance,” and to “request that the [state] bar disciplinary authorities suspend any parallel investigations” until DOJ completes its review.   
 
This “request” would not be an “ask,” as commonly understood, but rather a godfather’s “offer” you “can’t refuse.” If states say “no,” DOJ “shall take appropriate action to prevent the bar disciplinary authorities from interfering with the Attorney General’s review,” the rule says.

The threat is clear. This is not just a disagreement between state and federal sovereigns about legal ethics enforcement procedures. The rule would significantly undermine the rule of law and our democracy. 
 
The source of the rule and DOJ’s reason for it reveal this. DOJ says, “the President directed the Department to examine attorney discipline.” The president, not legal ethics experts. 
 
Why? Because state-imposed attorney discipline allegedly plays a “role in government weaponization,” code for the president’s patently unconstitutional campaign of retribution.   
 
Especially “troubling” to DOJ is “the willingness of some State bar disciplinary authorities to give credence to such [ethical] complaints.” Translated: some state bar disciplinary tribunals are taking today’s ethics complaints against DOJ leaders seriously, as they must. Good.

Among the million-plus, the six justices of the Maine Supreme Judicial Court unanimously opposed the rule. They noted that DOJ now, without a new rule, “may review the conduct of the attorneys it employs and take such action as it sees fit.”   

The requirement that state authorities wait “until the Department completes its own internal review,” would “interfere with” the Court’s “responsibility to timely address ethical complaints against lawyers who are members of the Maine Bar,” they say. 
 
Most important for us, they say, “We are gravely concerned that the Proposed Rule does not respect principles of federalism or separation of powers.” These are the foundations of our democracy. We all should be “gravely concerned.” 
 
The rule would provide cover for many of the unethical demands DOJ leaders are now making of their attorneys. DOJ’s enforcement of the president’s unconstitutional retribution campaign is a prime example. 
 
The always growing presidential “enemies” list includes two former presidents and many well-respected former cabinet officials, military leaders, an FBI director, intelligence officers, prosecutors, senators and representatives, state attorneys general and the chairman of the Federal Reserve, among others. 
 
Their sins? They did what their jobs required and participated in investigations of, or litigation against, Donald Trump; or criticized him or his policies; or simply publicly disagreed with him.   
  
When DOJ prosecutors have refused to indict them because there was not the ethically and constitutionally required “probable cause” to believe the target committed a crime, they were fired. 
 
A court has dismissed some partisan and frivolous charges, and grand juries have refused to indict the president’s enemies on others.   
 
The damage to those wrongly investigated and prosecuted, however, measured in economic costs, anxiety, embarrassment and the permanent loss of reputation, is extraordinary. 
 
The damage to our democracy is incalculable. Criticism is healthy. The “marketplace of ideas,” embraced by 17th century English philosophers and our founders, underlies the First Amendment, informs voters’ choices, and is a vital part of accountability.    
 
If federal prosecutors prosecute people for telling the truth or doing their jobs, as they are now told they must do, many will have nothing to say or will ignore their duties.   
 
Now would be the worst time to tell the rogue DOJ leadership that it can derail state legal ethics investigations to carry out an unconstitutional presidential agenda. That is why hundreds of thousands of people and organizations, including the justices on our Maine Supreme Judicial Court, have said “no” to this awful rule.