The Law Is Bigger Than The Bullies
Emil Bove III is a bully. There’s only one way to deeal with a bully: fight back harder.
Consider Bove’s treatment of the public integrity section lawyers as part of his campaign to dismiss the prosecution of Eric Adams. In the end, two lawyers and Bove himself signed the pleading. The motion says that Bove made the decision himself; his signature is an admission of that fact. Now the matter goes to District Court Judge Dale Ho. Marcy has a good description of the current status.
What are Judge Ho’s options? One suggestion made by three former prosecutors is the appointment of a special counsel to examine the actions of the DoJ with respect the dismissal. They suggest that the special counsel could recommend several courses of action, including disciplinary proceedings. The Immigration and Nationality Law Committee of the New York City Bar Association echoes this recommendation.
Disciplinary proceedings
Lawyers are subject to ethical obligations in their handling of legal matters. I don’t know where the lawyers involved in this decision are licensed, so I don’t know the particulars of the rules or proceedings that would apply to them. In general, most states have adopted a version of the ABA Rules Of Professional Conduct (“ABA Rules”).
The Federal Rules Of Criminal Procedure do not have a rule equivalent to FRCP 11, discussed here. ABA Rule 3.3 is similar to Rule 11. It prohibits lawyers from making false statements of fact or law to the court or to offer evidence known to be false. Here’s the text of ABA Rule 3.3(b):
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
ABA Rule 8.4 is directly implicated in this case. Here’s the relevant text:
It is professional misconduct for a lawyer to:
(a) violate 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;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ….
The history of ABA Rule 8.4 can be found in this opinion of the Standing Committee On Ethics and Professional Responsibility from 1992. The predecessor of this rule is DR 7-105(a), which provided “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” New York did not delete DR 7-105(a) when it updated its Rules of Professional Conduct. Footnote 2 contains a partial list of other states that kept the old rule.
There’s a lot of speculation floating around suggesting there’s a hidden agreement between Adams and Trump or his henchmen about immigration enforcement by NYC officials and/or something else. We can’t know all the facts. It’s notable that so many career DoJ officials resigned rather than dismiss the case, but that’s not conclusive. Tom Homan, Trump’s Border Czar, spouted words that some saw as confirming the quid pro quo, but he denied that later. In any event, the dismissal without prejudice seems to give the DoJ the ability to force Adams to act as Trump wishes or face revival of the charges. Here’s an example:
“Eric Adams no longer works for New Yorkers. He works for Donald Trump. Period,” state Sen. Zellnor Myrie, a mayoral candidate, said at a news conference. “Mayor Eric Adams will be under the thumb and control under Donald Trump until November.”
Let’s look at that possibility. It certainly looks like the use of the threat of criminal prosecution to achieve the Trump Administration’s desires in utterly unrelated civil matters. That’s an obvious violation of the provisions of DR 7-105(a) as in effect in New York, save for the word “solely”.
Also, in general, threatening criminal action to obtain something of value is a crime, the crime of extortion. The elements of that crime are
1. A threat to a person
2. For the purpose of gaining some material end
3. With the statutory mens rea,
The threat can be a threat of criminal prosecution, as every lawyer will tell you.
If a case like this one came before a Disciplinary Board under the equivalent of DR 7-105(a) the burden would be on the movant to show that there was no other lawful purpose for the dismissal without prejudice than to force Eric Adams to act as Trump or his henchmen want him to. Bove claims that the investigation will continue, although the case is ready for trial as it stands. I’d guess the facts are enough to shift the burden of proof to the target to show that there is a need for more investigation or some other lawful purpose.
If the case is under ABA Rule 8.4, the burden is on the movant to show that the target committed the crime of extortion, or that the target used others to achieve that result, or that the target lied about the facts or the relevant law.
It may be that the target’s position as a public official increases the likelihood that discipline is appropriate. Here’s Comment 7 to ABA Rule 8.4:
Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
What about the other lawyers? Whether or not they resigned, they are covered by ABA Rule 3.3(b) above. All DoJ lawyers represent the US, so it may be that they or other DoJ lawyers have obligations under that rule.
Discussion
1. John Eastman was deeply involved in Trump’s schemes to stay in office after being beaten by Joe Biden in 2020. A group of lawyers and judges filed a complaint with the State Bar of California asking that his law license be revoked. That matter was finally resolved in March 2024, when Eastman was disbarred. That’s too slow. If bar discipline is to have any meaning, it must be rapid, especially in the face of this lawless administration.
2. The advantage of bar discipline is that Trump and his henchmen can’t do anything about it. Admission to the bar is solely the responsibility of the Supreme Court of each state. The federal government has no role whatsoever in the matter, and Trump has no legal or financial leverage.
3. The threat of loss of his law license may not affect Bove, but it will haunt every career DoJ lawyer. Who knows, it might even affect the decisions of Trump-addled lawyers who might think of joining the DoJ.
4. DoJ lawyers have forfeited any claim to judicial respect. They should be shamed by every court. Here’s a delightful example. Here’s another from Judge Coughenour in the Seattle birthright citizenship case:
“In your opinion is this executive order constitutional?” he asked.
Said Shumate, “It absolutely is.”
“Frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order,” Coughenour said. “It just boggles my mind.”
DoJ lawyers should not be forced to give up their self-respect just to hold on to a job.
Pretty sure the toothless, moribund Office of Professional Responsibility has jurisdiction over allegations of misconduct by DoJ lawyers.
I’m sure that office will jump right in after the state bar jerks the license because Pam and Emil are very concerned that all their employees go above and beyond mere compliance will ethical obligations.
The beauty of a SC appointed by Judge Ho to get to the actual evidence is that there is really nothing that can be appealed or disrupted by Bondi’s DoJ. Evidentiary questions are the realm of the trial judge and I see no opportunity to claim error.
I do wonder why this SC option wasn’t done for the Flynn case, knowing that Judge Emmet Sullivan (who was known for being skeptical of Government motives in other cases) would have certainly considered finding out why Bill Barr tanked the sentencing.
Another DOJ senior lawyer has quit, this time over being asked to sign a letter wanting a bank to seize an account with funds disbursed under Biden.
https://www.dailykos.com/stories/2025/2/18/2304700/-DOJ-Prosecution-Chief-Resigns-After-Being-Ordered-to-Seize-a-Bank-Account-Without-Probable-Cause
Isn’t getting career personnel to resign the ultimate goal of the trump regime? They can replace them with lackeys.
The point is that if judges let the replacements violate the Rules of Professional Conduct, the justice system will become a joke, and courts will be just an arm of Trump and his henchmen. Enforcing the rules harshly against liars is the best way to insure that even the most Trump-addled lawyers won;t do it.
As to resignations, well, they’re going to try to fire them all anyway. At least those who resign walk away with their self-respect and their law licenses.
You’re gonna need a bigger law: https://www.youtube.com/watch?v=QT9BeGNnCqw
https://www.whitehouse.gov/presidential-actions/2025/02/ensuring-accountability-for-all-agencies/#:~:text=No%20employee%20of%20the%20executive,of%20regulations%2C%20guidance%2C%20and%20positions
”
Sec. 7. Rules of Conduct Guiding Federal Employees’ Interpretation of the Law. The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.
“
“Do it my way or you’re fired!” is not rule of law.
Well, that’s the problem faced by the lawyers in my last two examples. At some point they have to lie and say they agree to some preposterous position, as the DoJ guy in Seattle, or they get strung out, as Judge Reyes did to the lawyer in the trangender case, and hideously embarrassed.
Here’s another example from Heather Cox Richardson’s substack:
Ed, I am a physician not a lawyer. Your piece really helped me to understand the legal landscape.
Thank you Ed. You mention possible prior agreement between Trump and Adams, likely occured around the time Adams had lunch with Trump, Eric Trump, Steve Witkoff and Adams advisor Frank Carone at the Trump International Golf Course and a subsequent meeting at DOJ, 31 January with Bove, Sassoon and other members of her office and Adam’s attorney. Trump had previously said he would look into giving him a pardon (16th December) and prior to that Adams refused to answer if he would agree to a pardon (21 November).
In the end no pardon, instead Trump hung an Albatross around his neck!
One observation. I posted (perhaps over posted) on this issue yesterday and noted that every attorney that appeared before Judge Ho in the Adams prosecution is subject to discipline by the Southern District of New York, independent of the disciplinary power of the attorney’s state bar authority.
SDNY Local Rule 1.5 is titled “Discipling of Attorneys.” Local Rule 1.5 (b) provides in relevant part that an attorney can be disciplined if:
“[i]n connection with activities in this court, any attorney is found to have engaged in conduct violative of the New York State Rules of Professional Conduct as adopted from time to time by the Appellate Divisions of the State of New York.”
This is an important point. As far as I know, there’s a similar rule in all districts. There’s a similar rule in most state courts as well, applicable to lawyers appearing pro hac vice. If you appear in a court in a jurisdiction in which you are not licensed, you are subject to the same requirements as licensed lawyers.
That’s why lawyers appearing pro hac vice always hire local counsel: they don’t want to run afoul of the local rules. In this case, the DoJ lawyers may or may not be licensed in New York. They almost certainly don’t have to appear pro hac because there is an exception to that requirement for DoJ attorneys. Theoretically when DC DoJ lawyers appear in New York, they are accomanied by local Assistant US Attorneys who provide guidance about the local rules.
Of course, no one can make liars tell the truth.
I know the odds are long to getting the FL bar to revoke the license of our sitting AG, but I’d like to help make it happen.
I think we keep misjudging the enemy; the question is how far is Trump willing to go to eliminate the rule of law.
To ask the question is to answer it.
“A bully is a bully, and it’s important that you stand up to them.” David Hogg
And in an instance of “Ask and Ye Shall be Given”
American Oversight have complained:
“Letting an elected official off the hook for serious, evidence-based criminal charges in exchange for venal political support is textbook corruption and could be grounds for suspension of an attorney’s law license,” said American Oversight interim Executive Director Chioma Chukwu. “As a member of the New York bar, Mr. Bove is required to meet minimum standards of professional conduct, but the overwhelming weight of evidence suggests he has failed to do so. The rule of law isn’t a political trading card; it must be applied equally and uniformly, and we urge the New York Attorney Grievance Committee to investigate and address Mr. Bove’s actions before they become the norm at the U.S. Justice Department.”
https://americanoversight.org/american-oversight-files-bar-complaint-against-deputy-ag-bove-for-corrupt-actions-in-dismissal-of-eric-adams-charges/
The complaint and exhibits
https://www.documentcloud.org/documents/25539647-20250219-ao-ltr-to-ny-atty-grievance-cmte-re-bove-final-with-exhibits/