My name is Michael Fox, and I serve as a Legal Fellow with the Cato Institute’s Project on Criminal Justice. I write alongside my colleague, Matthew Cavedon, the Director of our Project. We are both former state-level public defenders and our current work addresses the lack of accountability for government officials—including federal prosecutors. We are concerned that the proposed rule seeks to impair the one remaining mechanism by which the actions of federal prosecutors can meaningfully be scrutinized.

The Most Powerful and Least Accountable

Federal prosecutors are “one of the most powerful peace-time forces known to our country”—and one of its least accountable. Though they hold the authority to strip citizens of their lives, liberty, property, and reputations, they enjoy nearly impenetrable legal protections.

A recently proposed Department of Justice rule—granting the Attorney General a right of first review over ethics complaints against DOJ attorneys—radically departs from federalism and further erodes our constitutional system of checks and balances. For decades, an informal agreement has existed where state bars typically wait for the DOJ’s Office of Professional Responsibility (OPR) to conclude its internal inquiries before launching their own. However, by formalizing this practice through official rulemaking, DOJ is attempting to compel state bars to suspend independent investigations. It seeks to ensure that federal prosecutors are held to a lower ethical standard than every other licensed attorney in the country.

This proposal aims to further insulate federal prosecutors from oversight. Further, OPR’s persistent failure to publish identifiable findings or ensure meaningful accountability only underscores the need for independent state bar investigations.