Dear Jurisprudence: I Thought Lawyers Weren’t Allowed to Lie in Court?

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This week’s episode of Amicus included a mailbag special in which Dahlia Lithwick and Mark Joseph Stern answered listeners’ burning questions about the law and its odds of surviving a second Trump administration. Amicus listeners have a lot of smart questions, so we’re starting a new occasional “Dear (Juris)Prudence” series in which we share your questions and Mark and Dahlia’s answers. Write to amicus@slate.com to pose a question to Dahlia and Mark. This transcript has been edited and condensed for clarity.^[2][3]

Dear (Juris)Prudence, 

Have any bar complaints been lodged against the Justice Department? Drew Ensign apparently straight-out lied to a judge in court. Isn’t that perjury? Are ordinary citizens allowed to lodge complaints to the ABA or local bar associations?

—Emily

Dahlia Lithwick: The answer, Emily, is hell yeah. It can be done. It is being done. There’s a little something called the McDade Amendment, passed in 1998, that actually requires federal government lawyers to follow both the ethics rule of the state where they’re licensed to practice and federal regulations. That means there are rules that actually prohibit DOJ attorneys from participating, for instance, in cases where they have a personal or political relationship (imagine!) with involved parties. The law actually says you are subject to state bar discipline, and that could range from reprimands to having to pay fines to permanent disbarment. This is no trivial threat.

Groups like the Legal Accountability Center^[4] released a bar complaint a few short weeks ago naming Deputy Attorney General Todd Blanche^[5], saying that he has massive conflicts of interest in his review of Ghislaine Maxwell and her testimony on the Epstein case because he has a prior relationship with Donald Trump. There’s another complaint accusing Ed Martin of ethics violations. So I think it’s fair to say that this is happening, but the problem is that this is a very slow and cumbersome process. It’s not that that relief isn’t there, it’s just that it can take years.

If you go back and look, Rudy Giuliani^[6], John Eastman, Kenneth Chesebro, Sidney Powell, and the other election deniers all faced actual consequences including disbarment and big fines for their efforts to overturn the 2020 presidential election results. But in some cases, it took years and years. You’ve also got regional differences where New York Bar officials went lickety-split to suspend Giuliani’s law license, whereas in Texas they dismissed a complaint against Sidney Powell.

The larger issue at the beating heart of the matter is that this is a very cumbersome method of seeking accountability. It was never anticipated that this was going to be the best way to go after DOJ lawyers, who have a whole web of obligations to answer to the Constitution and not the president. Nonetheless, it’s there and it works. These lawyers answer to a whole array of people up to and including Pam Bondi, but at the end of the day, if you’re lying in court, you face the consequences. It shows how far we have fallen, that this is the sanction we are having to deploy, but this is the sanction we have to deploy, and it works.

Mark Joseph Stern: I think that part of the problem is that state bars are by their nature conservative. They don’t like taking risks, and they are disinclined to initiate proceedings against a high-profile individual accused of misconduct, especially one who works for the federal government. These associations are used to disbarring people who, say, defrauded their clients or were utterly incompetent in court over and over again, et cetera.

It reminds me a little bit of the voters who tried to challenge Trump’s candidacy in 2024 under the 14^th Amendment’s insurrection clause^[8], by using procedures that mostly exist so that you can challenge a candidate who doesn’t live in the district they’re running for. The system isn’t set up for that. Maybe it can handle it, but that’s not what the system has traditionally been used for.

I would like to see people who are interested in this issue, lawyers who are interested in this issue, try to get elected to their state bars and take positions of power in which they actually have the authority to entertain these complaints and potentially to disbar people, like Drew Ensign^[13], who have perjured themselves in court over and over again and committed egregious misconduct. I actually think that that should be one of the solutions to the damage being done in the Trump era, if and when it ever ends. We need to restore the integrity of the profession of law in this country by going to state bars and saying: “These people have completely lost their privilege of practicing law. Drew Ensign should never be allowed to step foot in a court and argue before a judge again. He has proved to be utterly untrustworthy and inclined to perjure himself every time he opens his mouth before a judge.” We’ll see if that happens. But if you are a lawyer and this piques your interest, look to see how you can get involved with your local bar, because that is where the power is, and it is currently rarely being used to punish those who deserve to be punished.

Dahlia Lithwick: And one other thing that I would add is that there is a whole lot of semi-plausible defense in this along the lines of: I’m just following orders. It’s not my fault. I was not materially representing. I either chose to not know or I was misled. I really didn’t know if those planes had taken off. And I decided there was no way I could find out.

But there are things you can do as an attorney if you misrepresent the record. We know Justice Department lawyers who have come forward and said they were wrong, and that they were sorry. The question is, what do you do about the people who just sail from case to case and don’t feel any compunction about having misrepresented? I think in the absence of meaningful consequences, if you make a mistake, you don’t fix it, and you get to make the same mistake or a bigger one in the next case, it has to be bad for both the rule of law and confidence in the rule of law.

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