Ed Martin probe isn’t enough. Attorney discipline boards must step up
Last June, Washington’s D.C. Bar members said “not on our watch.” They overwhelmingly rejected Brad Bondi, Attorney General Pam Bondi’s brother, in his campaign for the bar’s presidency. Many feared Bondi would defang the bar’s disciplinary board (which he would not have directly controlled), so his defeat was framed as a triumph for the rule of law.
Some might see this week’s news that the D.C. Bar initiated disciplinary proceedings against disgraced Department of Justice lawyer Ed Martin as validating that sentiment. I’m not so sure.
Don’t get me wrong — Martin should be disbarred. Freedom of the Press Foundation (FPF) partnered with Demand Progress on a complaint last May over his ridiculous threats against people who criticized the Trump administration — including when an article in Wired identified inexperienced employees at the Department of Government Efficiency.
But Martin can’t be the sole sacrificial lamb. If investigations are reserved for attorneys as brazenly lawless as him, that’s quite a low bar (pun intended). There have been plenty of well-founded complaints against Trump administration lawyers filed in Washington and elsewhere since Bondi’s loss. Few go anywhere.
The need to act is clear. A November study found that dozens of courts have called out government lawyers for misrepresentations. Judges are (finally) threatening them with contempt for their antics, but the courage hasn’t spread to disciplinary offices, which have the power to disbar and suspend lawyers.
For example, a disciplinary complaint from FPF against Federal Communications Commission Chair Brendan Carr last July detailed Carr’s assistance to President Donald Trump, whose gilded face he wears as a lapel pin, in laundering an alleged bribe through the courts. Carr stalled CBS parent Paramount’s merger with Skydance, finally approving it two days after Paramount paid Trump $16 million to settle his frivolous lawsuit over an interview with then-Vice President Kamala Harris.
Hopefully, the Martin investigation is the start of attorney discipline boards showing some backbone.
The D.C. Bar’s December letter dismissing the complaint said the allegations “do not align with the language of those Rules and how they have been applied” by appellate courts, also noting supposed ambiguity in First Amendment law governing broadcasters.
It’s no surprise that there is no precedent specifically prohibiting FCC chairs from helping presidents extort licensees with frivolous lawsuits. The rules are broad because unethical antics are unpredictable. One prohibits “conduct involving dishonesty, fraud, deceit, or misrepresentation.” Another restricts “Conduct prejudicial to the administration of justice.” The First Amendment has nothing to do with the impropriety of facilitating bribery.
The D.C. Bar is not the only one reluctant to stick its neck out. Maryland’s Attorney Grievance Commission ducked another complaint against Carr, from the Campaign for Accountability, about his infamous “easy way or the hard way” ultimatum to pressure Disney to pull Jimmy Kimmel’s late-night show. Its rules, it said, allow (but don’t require) it to dismiss complaints that aren’t based on firsthand knowledge. It’s not like they were being asked to investigate rumors — Carr’s threat was on a recorded podcast — but they saw an opening to shrivel away and shrank through it.
Virginia’s state bar has joined its cowardly comrades around the Beltway. Last month, federal Judge William B. Porter chewed out prosecutor Gordon D. Kromberg for omitting the Privacy Protection Act of 1980 — which restricts seizures of newsgathering materials — from his warrant application for the January raid of Washington Post reporter Hannah Natanson’s home. Many experts believe the Natanson raid violated the act, and Porter said he may not have authorized it had the law been disclosed.
The DOJ’s stunt backs disciplinary offices into a corner — if they shy away from actionable complaints, they look like capitulators.
Before Porter gave Kromberg a piece of his mind, FPF filed an ethics complaint against him in Virginia, where he is licensed, about the omission. But the disciplinary board said it’s up to judges to decide whether attorneys have misrepresented the law — a perplexing position when the rules the board enforces expressly obligate lawyers to disclose authority that is adverse to their positions. Virginia cited a similar cop-out to not investigate embattled ex-prosecutor Lindsey Halligan. It’s reminiscent of Florida’s bar concocting a policy of not investigating federal officials to avoid investigating Attorney General Bondi.
We resubmitted the complaint about Kromberg after the judge made his position clear. Crickets.
Yet despite the inaction, the administration sees disciplinary offices as threats (or scapegoats). Last week, it proposed a rule empowering itself to “request” state bars suspend probes of prosecutors so the DOJ can investigate first, presumably from behind its giant North Korea-esque Trump banner. It says it “shall take appropriate action” if requests are ignored.
The proposal is nonsensical. The DOJ can already “request” state bars’ deference, just like I can call Domino’s and “request” free pizza, but there is no “appropriate action” either of us can take to get our way. Federal law says government attorneys are subject to state rules. Ironically, the proposal is so absurd that a lawyer defending it might violate their ethical obligations.
But the DOJ’s stunt nonetheless backs disciplinary offices into a corner — if they shy away from actionable complaints, they look like capitulators, just like the law firms that humiliated themselves by buckling to Trump.
Hopefully, the Martin investigation is the start of attorney discipline boards showing some backbone. We’ll see. FPF filed another complaint last month, with New York’s Attorney Grievance Committee, about government lawyer Sean Skedzielewski’s claims to a federal judge in Chicago that riots by “violent terrorist organizations” justified Immigration and Customs Enforcement’s rampage against the First Amendment.
As with regulators facilitating presidential shakedowns, no one ever thought to write a rule prohibiting government lawyers from fabricating terrorist invasions. The easy way out is there for the taking.