The U.S. Department of Justice (DOJ) has sued the District of Columbia Office of Disciplinary Counsel (ODC) and the D.C. Court of Appeals based on a detailed argument that at least some U.S. government lawyers serving under the current president are being prosecuted more harshly than federal agency lawyers working under appointees of prior administrations. Regardless of the case’s merits, the weaponization of ethics complaints is subject to fewer safeguards than other prosecutions, but is just as abusive.
On May 13, 2026, the DOJ filed a complaint that compared two prosecutions of ethics charges that reveal disparate treatment. The first case involved the ODC’s recent recommendation of disbarment for an assistant U.S. attorney general who, when serving under the current president during his first term, merely drafted an internal memo for discussion within the U.S. Department of Justice, which was never finalized and never sent outside the department in any final form. The draft letter was authored about six years ago, but the recommendation for disbarment was only made a few months ago.
In the second case, the same ODC recommended only a retroactive one-year suspension for a former FBI attorney serving under a prior administration—who pled guilty to a felony: falsifying a document submitted to a federal court. See Complaint ¶ 13.
The complaint by the DOJ also provides extensive details about the prosecutor in the ODC involved in the first matter who published many social media posts that suggest his political bias or lack of impartiality, such as his reference in a social media post to Associate Justice Samuel Alito Jr. as a “natural-born fool.” That same prosecutor in charge of enforcing legal ethics rules also posted doctored photos of Associate Justice Clarence Thomas suggesting, without evidence, improper receipt of large amounts of cash from friends. No similar posts were authored by him about justices considered to be more liberal.
The DOJ is seeking declaratory and injunctive relief against the District of Columbia ODC, the District of Columbia Board on Professional Responsibility, the District of Columbia Court of Appeals, and various ODC prosecutors in a lawsuit alleging violations of the Supremacy Clause and Article II of the Constitution of the United States. A motion to dismiss has been fully briefed but not decided as of mid-September.
The complaint refers to that same prosecutor in the ODC involved with the above cases allegedly using the ODC to persecute another lawyer working for the current administration. The ODC’s theory is that the lawyer’s oath to support the U.S. Constitution was violated when he sent a letter in his role as interim U.S. Attorney for the District of Columbia to enforce a recent U.S. Supreme Court decision and a presidential executive order regarding diversity, equity, and inclusion.
The underlying facts of the complaint by the DOJ stem from a disciplinary investigation of former Assistant U.S. Attorney General Jeffrey Bossert Clark (Respondent), and a subsequent disciplinary action which resulted in a 104-page Report and Recommendation of the Board on Professional Responsibility recommending that Respondent be disbarred—despite vigorous internal dissent within the ODC about the report’s conclusion.
The conduct alleged in the report was that Respondent had drafted an internal document that, in the view of the ODC, was an attempt to make intentionally false statements about the results of an investigation conducted by the DOJ relating to the 2020 election. The board found the facts “warrant[ed] disbarment: Respondent was prepared to cause the Justice Department to tell a lie about the status of its investigation of an important national issue (the integrity of the 2020 Presidential Election). Lawyers cannot advocate for any outcome based on false statements and they certainly cannot urge others to do so.” July 31, 2025 Report and Recommendation of the Board on Professional Responsibility at 6. But this report refers to a draft document circulated for confidential discussion internally only—and never finalized.
The DOJ complaint against the ODC for declaratory and injunctive relief alleges that to permit such disciplinary actions “is to allow state bar authorities to control the Executive Branch” and that “The President’s constitutionally required immunity would provide little protection if Executive Branch attorneys could be targeted for internal Executive Branch deliberations.” Complaint ¶¶ 1, 3. The complaint seeks to void the investigation, hearing, and recommendation, as well as to permanently enjoin any investigations or disciplinary actions against Respondent based on his conduct as a government attorney. The two main arguments advanced in the complaint are that the Board’s investigation, adjudication and findings violate (i) the Supremacy Clause and (ii) Article II of the U.S. Constitution.
Specifically, the DOJ reasons that the enforcement of the rules of professional conduct against Respondent constitutes unlawful regulation of the federal government which violates the intergovernmental immunity doctrine and chills the advice federal government attorneys may give on controversial topics out of fear of disciplinary complaints. Further, the complaint asserts bias in the disparity of treatment of federal government attorneys that results in demonstrated unlawful regulation of the federal government.
The complaint reasons that the board is unlawfully attempting to regulate the Federal Government through disparate treatment of federal government attorneys serving under the current president. Namely, it is unlawful discrimination to recommend disbarment for authoring an internal draft memo that was never finalized—as compared to virtually no penalty for admitting to the felony of lying to a court by an attorney serving under a prior president of a different party. Notably, the underlying felony related to a discredited investigation of the current president.
As to the Article II argument, the complaint maintains that the Board’s “disciplinary proceedings based on Executive Branch deliberations are unlawfully intruding upon the President’s and the Attorney General’s core Article II prerogatives” and that its “actions impair the … faithful execution of Federal law by subjecting Federal Executive Branch decision-making to local control.” Id., at ¶¶ 131-2.
The quiet part that we should say aloud is that, if some surveys are correct, among lawyers in the largest law firms, there is a paucity of diversity in political support or affiliation: political donations favor Democratic Party candidates about 12 to 1. Similarly, reports describe a group called the 65 Project that exists to file bar complaints against lawyers—including U.S. attorneys and U.S. attorney generals, but the complaints appear to have been filed only against those affiliated with the current president.
That data suggests the absence of a level playing field. The DOJ’s lawsuit against D.C.’s ODC reveals a similar imbalance and lack of diversity in viewpoints among those enforcing the laws and ethics rules, as well as those having the most clout within the legal profession.
The legal ethics rules must be enforced, but it is of equal importance that they be enforced evenly and impartially without regard to someone’s political views or political affiliation.