The DOJ Supremacy Clause Lawsuit and the Jeff Clark Disciplinary Action

The most recent battle in the war between the Justice Department and state courts over discipline for government lawyers is a declaratory judgment action and action for an injunction, filed on May 13, 2026, against the whole lawyer disciplinary apparatus of the District of Columbia – the chair of the Board on Professional Responsibility, chief Disciplinary Counsel Hamilton Fox, and the D.C. Court of Appeals (the highest court in the jurisdiction). The Department’s immediate objective is to prevent the entry of an order by the D.C. Court of Appeals adopting the recommendation of the Board on Professional Responsibility (in turn adopting the recommendation of a Hearing Committee that Clark be disbarred. But it’s impossible to dissociate this lawsuit from a broader campaign by the administration to prevent review by state disciplinary agencies of misconduct by DOJ lawyers. This isn’t me claiming to be a mind-reader; the DOJ complaint also talks about the pending grievance against Ed Martin, which I wrote about recently in connection with his motion to remove the proceeding to federal court. (In a similar vein, this this excellent piece by two scholars who know way more about the regulation of federal government lawyers than I do: Bruce A. Green & Rebecca Roiphe, The Justice Department’s Bid to Avoid Accountability, Lawfare (Apr. 14, 2026))

The DOJ complaint raises a couple of interesting legal issues, which we’ll talk about, but it’s also full of beefing about “weaponizing state bar discipline against Executive Branch attorney” in a way that “chills them from giving candid legal advice to others in the Executive Branch, including the President and Attorney General.” I know – pretty rich, right? Just a few weeks ago the D.C. Circuit heard oral arguments in the law firm executive order litigation (I’m working on a post on the argument), which of course involved the government’s effort to punish lawyers for representing the president’s political enemies. One of the law firms’ major arguments was that the president’s targeting of them for their representation chills their ability to provide legal services to their clients. Just as the president’s stated motives flavored the law firm executive order litigation, the complaint brings in facts about the motivation of activist groups who file state bar disciplinary complaints about administration lawyers. The 65 Project, for example, gets labeled a “dark money group with ties to Democratic Party heavyweights” (¶ 23), and the complaint goes on to allege that the grievances filed in the wake of the 2020 election “chill the zealous advocacy and candor of Federal officials, interfering with the President’s and Attorney General’s prerogatives under Article II of the U.S. Constitution, including the President’s duty to take care that our Nation’s laws be faithfully executed” (¶ 24).

It’s hard to read something about Donald Trump taking care that the nation’s laws be faithfully executed without busting out laughing. But it’s important to take the arguments in the complaint seriously if there’s any hope of escaping a maddening cycle of charges and counter-charges of weaponizing the legal system. I don’t think the Supremacy Clause is the right vehicle for bringing this claim, but I have to admit there’s something to the observation that a lawyer not working for the Trump administration, and not involved in election-denialism litigation over the 2020 election would almost certainly not have been subjected to a disciplinary grievance – let alone have a disbarment recommendation entered – for attempting to violate one of the vague catch-all rules.

I’ve have a couple of occasions to mention Clark, who’s come up in the context of frivolous litigation, the ethics of drafting unenforceable executive orders, threats of resignation by senior government lawyers, John Eastman’s disbarment by the California Supreme Court, and the recent disciplinary action against Ed Martin for (unsuccessfully) bullying Georgetown Law School.

Clark was the politically appointed head of the DOJ’s Environmental and Natural Resources Division, not an election-law specialist or anyone else who should have had any business getting involved in the controversy over the 2020 presidential election. But this did not stop him from trying to promote himself all the way to the top of the Department, seeking Trump’s appointment as Attorney General in response to a scheme to have the Georgia legislature appoint an alternate slate of delegates based on the claim that the Justice Department had investigated and determined that there was fraud in the Georgia election. He outlined the plan in a “Proof of Concept” letter, which is the subject of the D.C. disciplinary proceedings. The DOJ complaint refers to it repeatedly as a “deliberative and pre-decisional draft,” emphasizing that it was never provided to anyone other than lawyers in the DOJ – not even to the client, the president.

The letter observed that the Electors Clause of the Constitution provides that “[e]ach State shall appoint, in such a Manner as the Legislature thereof may direct, electors to cast ballots for President and Vice President.” There’s no constitutional impediment to state legislatures coming up with different ways to appoint electors, and a federal statute permits the state legislature to appoint electors if, on Election Day, the state has not made a choice. Clark wrote:

Many State Legislatures originally chose electors by direct appointment, but over time each State Legislature has chosen to do so by popular vote on the day appointed by Congress in 3 U.S.C. § 1 to be the Election Day for Members of Congress, which this year was November 3, 2020. However, Congress also explicitly recognizes the power that State Legislatures have to appoint electors, providing in 3 U.S.C. § 2 that “[w]henever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by [3 U.S.C. § 1], the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.

The letter was intended to go out under the signature of two senior DOJ lawyers, Jeffrey Rosen, the Acting Attorney General, and Richard Donoghue, the Principal Associate Deputy Attorney General. They treated Clark like their idiot kid brother, pointing out that he shouldn’t be Attorney General since he wasn’t a criminal lawyer and had never tried a criminal case. As Donoghue testified before the January 6 Commission, when Clark protested that he had done complicated lawyer stuff, Donoghue responded, “You’re an environmental lawyer. How about you go back to your office, and we’ll call you when there’s an oil spill.” As is well known, Trump was dissuaded from going through with the alternate-elector scheme when Rosen, Donoghue, and other senior DOJ lawyers threatened to resign en masse, leaving Clark to be “leading a graveyard.” (I wonder what Trump 2.0 would do in the same situation.) As a result, the Proof of Concept letter was never acted upon in any way. As summed up by the Hearing Committee, “Mr. Clark persisted in a plan so extreme that a room full of President Trump’s closest appointed advisors all considered it to be catastrophic.”

Professional Responsibility Exam Question Time: Under the D.C. Rules of Professional Conduct, is Clark subject to discipline? That is, did his conduct violate any textual provision of the D.C. Rules? Does it matter whether Clark sincerely believed the factual predicate for the “Proof of Concept” letter – i.e. that there were irregularities in the Georgia voting? Does it matter that the letter was preliminary, just a form of spitballing ideas among lawyers, and was never acted upon? Is it no harm, no foul? Does it matter that the legal theories in the letter were intended to lead to overturning the results of the 2020 presidential election?

Surprising Answer: The Report and Recommendation of the D.C. Board of Professional Responsibility is here. It adopted the recommendations of the Hearing Committee, which is here. In short (very short compared with the source materials – the Hearing Committee decision runs to 213 pages and the Board opinion is 104 pages with a 7-page dissenting opinion regarding the sanction), the Board concluded that Clark attempted to make a recklessly false statement. That’s right, it combined the rarely employed attempt provision of D.C. Rule 8.4(a):

It is professional misconduct for a lawyer to [v]iolate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another . . ..

with one of the broad catch-all provisions of Rule 8.4(c):

It is professional misconduct for a lawyer to [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation . . ..

The Hearing Committee and the Board rejected the assertion by Disciplinary Counsel that Clark had also attempted to violate Rule 8.4(d):

It is professional misconduct for a lawyer to [e]ngage in conduct that seriously interferes with the administration of justice . . ..

The Hearing Committee found that the Proof of Concept letter was not an attempt to interfere with “the judicial process, in respect of an identifiable case or tribunal” (p. 191), and the Board agreed that, even if Rule 8.4(d) applied to the legislative process (urging the Georgia to appoint alternate electors), the interference is still with an abstract idea of orderly administration of justice and not a specific proceeding.

The specific charges for which the Board recommended disbarment for “flagrant dishonesty” (pp. 99-100) are that Clark attempted to send the Proof of Concept letter containing three recklessly dishonest statements:

(1) indicating that the Justice Department had identified significant concerns about potential outcome determinative irregularities; (2) suggesting that the Justice Department was investigating the information in the report prepared by Georgia State Senator Ligon (.Ligon report.); and, (3) stating that the Justice Department believed that competing slates of Presidential electors had been sent to Washington, D.C.

But he didn’t send it! On one reading of events, all of Clark’s supervisors recognized the Proof of Concept letter as completely harebrained and told him to get lost. It was only when Trump got wind of the plan and seemed to take it seriously that the senior DOJ lawyers had to threaten to resign. In the end, though, the violation was only an attempt. The Board wrote (p. 71):

Respondent came dangerously close to causing the Justice Department to issue a false statement. He never ceased his advocacy to send the letter. Had the others in the Oval Office meeting not persuaded the President that it would not be worth .the breakage,. the Justice Department would have issued a letter that falsely impugned the integrity of the 2020 Presidential election.

Yes, it’s true that the criminal law punishes attempts. If you fire a rifle at your rival and miss, that’s attempted murder and you will be criminally prosecuted. People who attempt to murder others are dangerous, and should be punished. But professional discipline for attempts is extremely rare to non-existent. Maybe that’s because lawyers who aren’t competent enough to pull off a cockamamie scheme like this aren’t actually all that dangerous and need to be laughed at rather than punished. (That’s my view at least. Someone should appoint me to the state board of mocking comically incompetent lawyers.)

The Board’s response to this sort of argument is to shift the frame of reference. In its discussion of sanctions, the Board says the serious of Clark’s conduct “cannot be overstated” (p. 93), because really bad things would happen if Trump had managed to steal the election. Deputy White House Counsel Patrick Philbin said to Clark that “if he found a way for the President to stay in the White House past January 20, there would be riots in every major city in the country,” to which Clark responded, “well, Pat, that’s what the Insurrection Act is for” (p. 97). That’s not funny at all! In the portion of the analysis which looks at sanctions in cases with comparable misconduct (p. 99), the Board does not look at other cases of attempted misconduct, but considers other cases of dishonesty. Two dissenting members, who concluded that all of the charged misconduct amounts to, essentially, an attempt to make one false statement, would have recommended a three-year suspension.

The DOJ complaint focuses on the disparity between the treatment of Clark and any comparable attorney. The core of the “weaponization” claim, tiresome as it is, is one that anyone who cares about the rule of law has to take seriously: There can’t be one law for Trump administration lawyers and one law for everyone else. We’ll take that up in the last section, on vindictive prosecution. The main thrust of the complaint is that the D.C. disciplinary system shouldn’t be concerning itself with Clark at all, because to do so would intrude into the lawyer-client relationship between government legal advisors and the president.

I’ve written plenty about the McDade Amendment and issue of whether the Supremacy Clause blocks state disciplinary authorities from disbarring, suspending, reprimanding, etc., lawyers employed by the federal government who violate rules of professional conduct of their admitting jurisdiction. (All federal government lawyers have to be admitted in some state or territory of the United States.) But there’s still a matter that requires some clarification.

McDade, 28 U.S.C. § 530B, says simply:

An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State. . . .

Isn’t that the end of the matter, then? Not really, because to say lawyers for the federal government are subject to state laws and rules, including rules of professional conduct, in the same manner as other lawyers in the state doesn’t resolve whether the (applicable) state rule is inconsistent with federal law and therefore would be preempted.

There has been a lot of litigation over the conflict in application of state rules of professional conduct and federal rules of criminal procedure in the context of Rule 3.8, on the conduct of prosecutors. Most states’ version of Model Rule 3.8(e), for example, restrict prosecutors’ issuance of investigatory subpoenas defense lawyers, to obtain evidence about past or current clients. The rule is obviously aimed at protecting the lawyer-client relationship. There are, unsurprisingly, already federal rules of criminal procedure regarding the issuance of subpoenas, and they may balance the interests differently, of facilitating investigations of crimes vs. protecting the lawyer-client relationship. McDade said a federal prosecutor is subject to state rules, but if those rules conflict with the federal rules, they may be preempted nonetheless. A widely-cited case, written by the inimitable Judge Bruce Selya (my favorite Selya-ism of that case is “sockdolager”), explains that when a rule of professional conduct grows beyond “merely” regulating attorney conduct and starts to affect the parties’ procedural rights, then it may not be protected from preemption by McDade:

Local Rule 3.8(f) [Mass. Rule 3.8(f) as adopted by the district court] clearly extends beyond the shelter that section 530B provides. Although the statutory text, which refers to “State laws and rules, and local Federal court rules, governing attorneys,” is arguably susceptible to a broad interpretation, we have noted before that a statute’s caption may assist in clarifying ambiguities. The title of the statute here (”Ethical standards for attorneys for the Government”) removes any doubt about its scope: section 530B applies only to ethical standards. This conclusion becomes irresistible in light of the legislative history and implementing regulations.

That ends the matter. Local Rule 3.8(f), though doubtless motivated by ethical concerns, has outgrown those humble beginnings. Substance, not form, must control. As written, Local Rule 3.8(f) is more than an ethical standard. It adds a novel procedural step -- the opportunity for a pre-service adversarial hearing -- and to compound the matter, ordains that the hearing be conducted with new substantive standards in mind.

Stern v. U.S. Dist. Court for the Dist. Of Mass., 214 F.3d 4 (1st Cir. 2000) (citations omitted). For a few other cases going various ways, see United States v. Supreme Court of New Mexico, 839 F.3d 888 (10th Cir. 2016); United States v. Ky. Bar Ass’n, 439 S.W.3d 136 (Ky. 2014) (rule of professional conduct prohibiting prosecutors from seeking waivers of ineffective assistance of counsel claims did not conflict with federal law); United States v. Colo. Supreme Court, 189 F.3d 1281 (10th Cir. 1999) (Rule 3.8 does not conflict with Fed. R. Crim. P 17); United States v. Lowery, 166 F.3d 1119 (11th Cir. 1999 (Rule 3.8(f) does conflict with federal law); see also this good student note, Federal Prosecutors, State Ethics Regulation, and the McDade Amendment, 113 Harv. L. Rev. 2080 (2000).1

The concern underlying many of these cases is . . . are you ready for it – weaponization! Long before either Trump administration, federal prosecutors have been arguing that defense lawyers and other progressive interest groups have latched onto state rules of professional conduct as a way of accomplishing criminal procedure reform through indirect means. As the Harvard student note puts the policy issue:

[T]he McDade Amendment gives state ethics rules pri ority over federal policies without considering the unique role of fed eral prosecutors or permitting exceptions from compliance when federal policy interests so require. This hierarchy could interfere with the effective investigation and prosecution of federal crimes when state ethics rules conflict either with federal ethics rules or with federal investigative and prosecutorial techniques.

This is a bog standard critique from the prosecutors’ side; it is not something unique to the Trump DOJ, although they have taken the rhetoric of weaponization to the next level.

But this is going nowhere in the Clark disciplinary proceeding, for the simple reason that there is no conflict between the requirements of D.C. Rule 8.4(c) (don’t engage in dishonesty) and other affirmative duties or rights in federal law. The cases on grand juries, subpoenas to lawyers and similar practices involve what is known as conflict preemption (although the cases don’t always refer to it this way), where federal law preempts state law because otherwise state law would either make it impossible to comply with state law, or would stand as an obstacle to realizing the purposes of federal law. In my other area of specialization, products liability law, there is a case called Geier v. American Honda Motor Co., 529 U.S. 861 (2000), in which a federal motor vehicle safety statute preempted a state law design defect claim, where the claim was that the car was not equipped with a driver’s side airbag. The Supreme Court said that the goal of the statutory scheme was to set a regulatory floor of minimum safety and then allow manufacturers to experiment with a mix of passive restraint systems. Thus, state law claims for design defect had to be preempted in order to accomplish the statutory objective; if a state law claim could come along and deem a manufacturer’s design as defective, it would stand as an obstacle to realizing the purpose of incentivizing experimentation by manufacturers.

As I emphasize when I teach Geier, that case is a very rare bird. There are not many obstacle preemption cases, because courts are generally okay with a certain amount of tension between state and federal law. Tension is not a conflict for preemption purposes. But we don’t even need to get to the boundary between conflict and tension here, because there is neither, as between the requirement that a lawyer not engage in dishonesty and the interest in receiving competent legal advice. If the disciplinary action against Clark had been based on a false statement in court, in violation of Rule 3.3, there’s no way a court would find a conflict with a federal policy. Analogously, a client doesn’t have a right to deceptive legal advice (nor would any sane client want deceptive legal advice). So I don’t see this case joining the ranks of the grand jury subpoena cases that relied on the Supremacy Clause, even after McDade, to oust state regulation of the conduct of federal attorneys.

Most of the cases in which state regulators defend their authority to regulate lawyers begin and end with McDade and sometimes the additional preemption/Supremacy Clause question. In this lawsuit by the DOJ, however, the regulators may have an additional basis for dismissing the complaint. Weaponization is an idée fixe for this administration. One of its first acts was to direct federal agencies to investigate whether their activities had been put to improper purposes by the Biden administration. The Department’s Weaponization Working Group was, for a time, headed by none other than Ed Martin, currently facing a disciplinary grievance in the District of Columbia for, in essence, weaponizing the activities of the U.S. Attorney’s Office for the D.D.C. (That one really makes your head hurt if you think about it too much.) And, of course, the recently established slush fund to pay off Trump’s buddies, including violent rioters who attacked cops on January 6, is called the Anti-Weaponization Fund.

So, it should not be surprising that DOJ lawyers are on high alert for anything they can characterize as weaponization. They state in the complaint (¶ 84):

Defendants are unlawfully attempting to regulate the Federal Government by leveraging the disciplinary process against Federal Government attorneys vis-à-vis other Federal Government attorneys differentially based on factors other than the disinterested administration of justice, like viewpoint and political affiliation.

The complaint goes through the tale of an FBI agent who pled guilty for altering an affidavit as part of the investigation into Carter Page, an advisor to the Trump campaign, as part of the investigation into ties between the Trump campaign and Russian intelligence. The “Russia hoas” is another obsession of Trump’s and quite a rabbit hole to fall down; I’ll resist the temptation here, but the Wikipedia page on the Crossfire Hurricane investigation is pretty good. The long and short is, FBI agent Kevin Clinesmith was the only person subjected to criminal prosecution as a result of Special Counsel John Durham’s investigation of the origins of the Russia collusion investigation. He pled guilty and was sentenced by Judge Jeb Boasberg to probation instead of prison time. This episode, along with Judge Boasberg’s contempt proceedings against the DOJ, has fed a burning hatred of the judge within the administration.

Anyway, Clinesmith was also a lawyer and was referred to the D.C. Bar for discipline after pleading guilty. On a reciprocal discipline action from the Michigan Bar, which suspended Clinesmith’s license, the D.C. Bar suspended it for a year (complaint ¶ 86). The DOJ is mightily aggrieved that Bar Counsel is seeking Clark’s disbarment while Clinesmith was only suspended for a year. But of course sentencing depends on all the facts and circumstances, and the Board went through a long discussion of the aggravating and mitigating factors leading to the recommendation of Clark’s disbarment. Under U.S. v. Armstrong, a selective prosecution claim requires a showing of a discriminatory prosecutorial policy (e.g. based on race) that was motivated by a discriminatory purpose. The complaint alleges:

89. Defendants are unlawfully discriminating against the Federal Government by leveraging the disciplinary process against Federal Government attorneys differently than against non-Federal Government attorneys.

90. On information and belief, Defendants have never punished a non-Federal Government attorney for a deliberative and pre-decisional draft document like the “Georgia Proof of Concept” letter, or any similar document or conduct.

As evidence of discriminatory motive, the complaint cites a number of social media posts by an Assistant Disciplinary Counsel, criticizing Justices Thomas and Alito. So the theory is not so much disparities in sanctions between Clinesmith and Clark, but that the D.C. Bar went after Clark only because of animus by the assistant disciplinary counsel. Given the amount of attention Clark’s “Proof of Concept” letter received at the time, and the high drama surrounding the threat by Rosen and Donoghue to resign if Trump appointed Clark Attorney General, it seems highly implausible that the only reason the D.C. Bar pursued the grievance against Clark is that one of its lawyers had a hate on for conservative Supreme Court Justices.

A selective prosecution claim may also be based on the connection between a prosecution and the defendant’s exercise of a constitutional right, in which case it is usually referred to as vindictive prosecution. The recent district court decision dismissing the indictment of Kilmar Abrego Garcia for vindictive prosecution provides a thorough survey of the caselaw. So does a motion to dismiss the indictment against the Southern Poverty Law Center. The DOJ doesn’t really elaborate on this version of the claim. My theory is that they have to tread carefully, because a vindictive prosecution claim requires a showing that the defendant engaged in protected activity. In the case of Jeff Clark, it would be advising the president. To admit that what Clark did was protected, however, would effectively concede a piece of the law firm executive order litigation, i.e. that the firms’ representation of clients, including political enemies of Trump, was constitutionally significant. Maybe I’m ascribing too much coherence to the Department, but the complaint against the D.C. disciplinary authorities was signed by some fairly senior officials, and it’s not implausible that they were trying to avoid complicating other litigation in which the administration is involved.

To wrap this up, my take is that the D.C. Bar may have overreached in seeking disbarment of a government lawyer for attempting to make a false statement. That theory is vulnerable to the factual argument that it’s hard to think of a case in which a lawyer was punished on a similar theory. But that was an argument for trial, and the DOJ’s lawsuit is, in effect, a collateral attack on the proceeding based on a fairly tenuous assertion of a conflict between federal objectives and state-court-based disciplinary proceedings. Again, McDade isn’t dispositive of that issue, but looking at the history of preemption claims based on Rule 3.8, it doesn’t seem like a winning argument for the DOJ here.