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Authors

Stephen Gillers

Publication Date

11-18-2022

Abstract

During the Trump presidency, Americans were reminded that the nation relies on norms or custom—not laws alone—to protect the Department of Justice and the rule of law from improper political interference. The Justice Department is an agency within the Executive Branch and the Supreme Court has told us that the executive power—“all of it”—resides in the President alone, implying that the President can use the Department anyway he wishes limited only by the Constitution and by laws that do not violate separation of powers principles. Which laws are those? This Article concludes that Congress can do only a little to constrain executive power but enough to prevent some of the worst abuses.

Another check on the President’s executive power is the third branch of government—the judiciary. A proper exercise of judicial power will not violate separation of powers principles even if it prevents the President from acting as he may wish. This is obvious, of course, for decisions in cases within a court’s jurisdiction, but courts do more than decide cases. As relevant here, they also write professional conduct (or ethics) rules for lawyers whom they license or who appear before them. Authority to do so is an exercise of their inherent power. Those rules govern all lawyers including lawyers at the Department of Justice. And the rules are not limited to the conduct of lawyers who go to court. They apply whenever a lawyer represents a client. Justice Department lawyers must refuse to follow a President’s instructions that do not faithfully execute the laws or if doing so would otherwise violate a court rule.

In a clash between the executive and the judiciary—where a federal or state court rule imposes a duty that may interfere with a goal the President wishes to accomplish—who wins? This Article argues that the judiciary wins. Its victory is further assured because the court’s authority to require obedience to its ethics rules does not rely on inherent judicial power alone, although that would suffice. The judicial authority has also been endorsed in congressional legislation. This Article analyzes certain provisions in the Model Rules of the American Bar Association and the professional conduct rules of the District of Columbia Court of Appeals (which govern many Justice Department lawyers, including the Attorney General and inferior officers who work in the District) and explains how each rule may be a check on executive power.

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