DOJ Lawyers Aren’t the President’s – No Matter What a Memo Says

This article was originally published on Bloomberg Law May 6, 2025 and appears here by permission.  © 2025 Bloomberg Industry Group, Inc. All Rights Reserved

New York County Lawyers Association’s Albert Feuer and James Kobak warn Attorney General Pam Bond is trying to turn DOJ into a law firm for the president.

Attorney General Pam Bondi has issued a directive that seriously undermines the US Department of Justice’s mission to “uphold the rule of law, to keep our country safe, and to protect civil rights.”

In a Feb. 5 memo describing the DOJ’s “general policy regarding zealous advocacy on behalf of the United States,” Bondi set forth a key contradiction. While DOJ attorneys must “zealously defend the interests” of the US, she notes that those “interests, and the overall policy of the United States, are set by the Nation’s Chief Executive.” Bondi makes it clear that this means that the responsibilities of DOJ attorneys “include not only aggressively enforcing criminal and civil laws enacted by Congress, but also vigorously defending presidential policies and actions.” A DOJ attorney who disregards those responsibilities “deprives the President of the benefit of his lawyers,” and “will be subject to discipline and potentially termination.”

Rule of Law
But DOJ lawyers aren’t the president’s lawyers. They are our country’s lawyers. They must always act on behalf of our country, not the president. The “interests and overall policy of the United States” are set by the Constitution, and by the statutes Congress approves and the president signs into law, subject to review by the courts.

The president’s role as chief executive is to see that our laws are faithfully executed. The president may propose an agenda for Congress and set the priorities for the executive branch, but only within the constraints on his office imposed by the Constitution and previously enacted statutes.

No election results—not even a “landslide”—alters the president’s powers. All DOJ attorneys take an oath to uphold our Constitution and laws because their client is always our country. Bondi’s memo and her subsequent actions should trouble all Americans. Federal prosecutors enjoy enormous discretion to decide who to investigate, who to prosecute, how to prosecute, what punishments to seek, whether and how to negotiate plea bargains, and when or whether to stop prosecutions.

Until now, it was recognized that these decisions should be insulated from partisan politics so everyone could be assured prosecutions weren’t brought to settle political scores—and that even a president’s friends would be prosecuted if they broke the law. But now, DOJ lawyers have been told on pain of “discipline” and potential termination that they must follow the “political views” that align with “those that prevailed in the election.” They must serve as instruments of the president’s will, and they may be fired for not being “zealous” enough on behalf of the president. This is the opposite of the rule of law under our Constitution.

Bound by Ethics
Government lawyers who violate the ethical rules governing the legal profession, including those who direct unauthorized conduct, may be subject to sanction and discipline, including suspension or revocation of their license to practice law.

Lawyers’ ethical rules prohibit them from blindly following superiors’ orders to commit illegal, unfounded, or unauthorized acts. Those rules forbid lawyers from counseling or assisting clients to commit unlawful or fraudulent acts, or to take positions in court without a factual and legal basis formed after due inquiry. Lawyers may not engage in any conduct that involves dishonesty or misrepresentation, or that is prejudicial to the administration of justice. If, while handling a matter, a lawyer becomes worried about any of these issues, the lawyer may proceed only if satisfied that a superior has considered and reasonably resolved the issue.

Lawyers may be required to withdraw from a representation that places unethical demands on them. And they may need to inform and protect the interests of the entity they represent—for DOJ lawyers, the US—especially when confronted with unlawful or unauthorized acts undertaken or ordered by the entity’s own representatives or officers. When DOJ lawyers are told they must “vigorously defend presidential policies and actions,” and act as if they are the lawyers of the president rather than of the government—under the threat of dismissal—they are encouraged to subordinate or disregard basic professional ethical obligations that protect our liberties and the rule of law.

Lack of Protection

Bondi is directing all DOJ lawyers not to “deprive the President of the benefit of his lawyers” and then pays lip service to one, but only one, of a lawyer’s duties—the duty to have some good faith basis for advancing an argument in court.

Nothing in the memo protects a lawyer who exercises the independent professional judgment that the rules of ethics command in any other circumstance, including in matters that don’t involve a court appearance. Nor does it protect a lawyer from being fired or disciplined for not being candid with a court. The memo also doesn’t protect the lawyer from sanctions by a court or disciplinary authority for complying with dubious DOJ demands. DOJ lawyers do us all a great public service when they fulfill their responsibilities. They should be praised for doing so. Instead, the Bondi memorandum threatens such honorable lawyers with dismissal.

Through her pronouncement on “zealous advocacy,” her directions to DOJ lawyers, and her removal of many experienced career officials from nonpartisan roles, the attorney general is undermining our constitutional rights and the rule of law. Much is at stake. Courts, disciplinary authorities, lawyers, the news media, and the public can and should condemn any DOJ lawyer who abandons justice to win favor at work or for fear of retribution and praise all who follow the US Supreme Court mandate that justice shall be done.

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Author Information

Albert Feuer is a tax, employee benefits, and trusts and estates attorney and a member of the New York County Lawyers Association’s Task Force on the Rule of Law. James Kobak Jr. is a member and former president of the New York County Lawyers Association’s Task Force on the Rule of Law.

The NYCLA Task Force on the Rule of Law and Professor Susan Koniak of the Boston University School of Law contributed to this article.

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

© 2025 Bloomberg Industry Group, Inc. All Rights Reserved
Reproduced with permission. Published May 6, 2025 Copyright 2025 Bloomberg Industry Group