Unethical To Prosecute “Evil” Law?

As Attorney General, Dick Thornburgh issued a memo in 1989 exempting government lawyers from state ethical codes. The subsequent outrage wasn’t so much about prosecutors engaging in unethical conduct, but Thornburgh’s position that they were beyond it. Congress subsequently “fixed” the problem by passing 28 U.S.C. § 530B, requiring compliance with state ethics codes.

This happened well before the ABA embraced social justice as its lodestar for attorney ethics by adding Rule 8.4(g) to the Model Rules of Professional Conduct, which has nothing to do with the practice of law and everything to do with political correctness. While the new rule is of little significance, given that states have largely rejected it, it remains a guiding star to woke of the legal academy, like Santa Clara lawprof Diane Klein.

At Dorf on Law, Klein raises the call for new lawyers from the Department of Justice to prosecute denaturalization cases. The gravamen of the initiative is to prosecute naturalized United States citizens who obtained their citizenship by fraud.

Like “voter fraud” and ICE “liberating” towns from MS-13, there is no substantial naturalization fraud.  There is no crisis requiring a “task force” or a new U.S. Citizenship and Immigration Services (USCIS) office.  This is another pseudo-problem, put forward to advance the Trump Administration’s racist, populist, and nationalist themes, regardless of the evidence (or the lack of it), and to justify mobilizing government resources against vulnerable people.

There has been no showing that this is a problem at all, and the call to arms came largely out of the blue. But the government has chosen to go down this road and seeks more lawyers to do the job.

This time around, those people are citizens.  Lawyers who participate in this project – to the extent it targets individuals on the basis of race, religion, or national origin, as it seems very likely to do – should know that they do so at the risk of violating their professional codes of conduct.

Klein takes no issue, and in fact doesn’t even bother to mention, that the law  provides for denaturalization when citizenship is obtained fraudulently. Her issue isn’t with fraud, but with using the law to target individuals based on “race, religion, or national origin, as it seems very likely to do,” and suggests that lawyers working for the government enforcing laws enacted by Congress risk ethical violations. That’s because she imputes venal intent to all Trump administration actions.

On that basis alone, it is an evil, repugnant, wasteful endeavor, in which no person of conscience should willingly take part.  By its nature, though, it will require the services of “several dozen” new government lawyers – each of whom, I would suggest, may find themselves in violation of the applicable rules of professional conduct.

This might seem a more compelling claim had Klein raised it when the government targeted prosecution against minorities over the past four decades, but then, fair weather saviors were mute until now. But is there any basis to Klein’s argument that new prosecutors risk legal damnation for enforcing existing law?

To the extent that lawyers working in this office are likely to be admitted or appear in states other than California, the Model Rules or very similarly-worded rules are in effect in those jurisdictions, too.  In August 2016, the ABA House of Delegates voted to add a new paragraph (g) to Model Rule of Professional Conduct 8.4, the catch-all “misconduct” rule. It reads:

It is professional misconduct for a lawyer to: (g) engage in conduct the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

Of course, this rule is irrelevant since states haven’t adopted it because it’s an absurd First Amendment violation beloved only by the unduly passionate. Based upon her profusion of adjective, Klein appears very passionate, indeed.

The problem is that this inapplicable rule, as well as the applicable rules of various jurisdictions, is so remarkably vague and overbroad, not to mention directed to the practice of law as opposed to bringing social engineering to lawyers, that it allows Klein to indulge in a butterfly theory of unethical conduct for government lawyers enforcing extant laws.

It all starts with the certainty that Darth Cheeto is evil, and therefore any action taken by his administration is tainted by his venality.*

A denaturalization task force is chilling enough, coming from this Administration, which has so openly espoused a White and xenophobic ideal of “Americanness” that excludes racial and religious minorities, whatever their origins.  The deprivation of what Gessen calls “the assumption of permanence” is arguably an equal protection violation, in treating the naturalized as less than the natural-born in a way that serves no legitimate government interest.

As the Supreme Court held with regard to the third iteration of the travel ban, the government still gets to function despite the certainty of prawfs like Klein who believe that no one and nothing associated with Trump can not be inherently evil, unconstitutional, and now, unethical. Whether there is a need for a denaturalization task force is a perfectly fair question, and whether the task force being housed in Los Angeles suggests that it will not be focusing its attentions on Norwegians entering through Canada. But if someone lied to obtain citizenship, they’re not entirely sympathetic either, and they don’t become more sympathetic because they came from Mexico.

The thrust of this effort, however, to try to scare off lawyers from working for government by suggesting their representation would be unethical because Trump is evil is bizarre.

[USCIS Director Lee] Cissna would be well-advised to put his new office near a Chick-Fil-A, because I can’t imagine his legal henchmen (and women) will find a very welcome reception at the taco trucks downtown – or from the California State Bar.

Even more bizarre is the possibility that similarly passionate members of state disciplinary committees might take up this cause and try to discipline lawyers for enforcing the law.

*To show just how outlandish this guilt by association derangement has become, my pal Elie Mystal at ATL closed out the week with this gem:

WE REALLY DON’T CARE IF YOUR LAW PROFESSOR WAS NICE: If she’s going to serve this president on the Supreme Court, she’s still an ass.

Somebody ought to explain to Joe Patrice that justices don’t “serve” the president.

11 thoughts on “Unethical To Prosecute “Evil” Law?

  1. Dan

    It seems pretty obvious that they’d be discriminating on the basis of national origin–only those born outside of the United States could possibly be of concern. How low is the IQ bar to be a law professor, anyway?

  2. Jake

    “This might seem a more compelling claim had Klein raised it when the government targeted prosecution against minorities over the past four decades, but then, fair weather saviors were mute until now.”

    So, silver lining? Better late than never. If it takes the taint of Trump to make criminal justice reform fashionable, I say: let them smell taint!

    1. SHG Post author

      Excellent try. If only the self-righteous were as concerned for lawyers for the indigent as they are for lawyers for undocumented immigrants, you might have an argument. But they neither know nor care about reform. They only know they hate Trump and anything he does is literally Hitler. When the next Obama does the same thing, it will be audacity.

      1. Jake

        I hear indigent defense funds don’t offer the same investment returns as private prisons. The invisible hand is notoriously pitiless when it comes to the poor.

        1. SHG Post author

          You need to fight this impulse you have to try to always have the last word. You dig deep holes to begin with.

  3. Richard Kopf


    Re ATL “gem.”

    Judge Merrick Garland was nice. He was nominated to “serve” Barry. That makes him “an ass.”

    Syllogisms are fun but hard.

    All the best.


    1. Nemo

      Judge Kopf,

      If people thought through the secondary implications of what they said and did, would you retire or seek out a secondary career?



      1. Richard Kopf


        Sorry for the late reply.

        Out where the West was won, and probably also in big cities with shiny lights, we don’t need to worry about people thinking out secondary implications. That possibility is pie in the sky. I like and wish for some pie. But people in hell want ice water too. Terminally dumb is everywhere.

        As a result, I am staying where I am. All the best.


  4. Stan

    (USCIS Director Lee Cissna would be well-advised to put his new office near a Chick-Fil-A, because I can’t imagine his legal henchmen (and women) will find a very welcome reception at the taco trucks downtown )

    Seems Ms. Klein feels that a Latino couldn’t/wouldn’t be a Chick-Fil-A franchisee operator.
    Kinda racist assumption there.
    Maybe she needs more sensitivity training.

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