DOJ Attorney Misconduct Wave Fueled in Part by Court Deference

There is growing evidence that the ethical lapses within the Justice Department are systemic in cases that have gained attention from political appointees or the White House itself.

Last week, in an extraordinary rebuke, US District Judge April Perry declared “trust has been broken” by the US Attorney’s Office for the Northern District of Illinois when she dismissed charges against four anti-ICE protestors. The dismissal, requested personally by US Attorney Andrew Boutros, reflected serial abuses of prosecutorial authority in grand jury proceedings—and an apparent effort to hide those illegalities from the court via redactions of the ensuing record.

If the dismissals and the unethical and illegal prosecutorial conduct that provoked the judge’s rebuke were unique, there wouldn’t be grave cause for concern. But the day after the Chicago case, Judge Waverly Crenshaw in Nashville dismissed a federal indictment against Kilmar Abrego Garcia—notoriously, the victim of an earlier unlawful rendition to the CECOT prison in El Salvador—on the ground that it was “vindictive.”

And before that, federal prosecutors admitted late last year that not all grand jurors had been shown a final indictment against former FBI Director James Comey—a serious form of misconduct warranting dismissal.

Look more broadly across the Justice Department, and further evidence of declining ethical compliance is apparent. There are no less than 34 instances, according to one count, in which federal courts have identified noncompliance with court orders since January 2025, and 90 instances in which judges echoed Judge Perry’s expression of distrust, or even disbelief in representations by government attorneys.

This broader pattern must be understood against a background fact: It’s exceedingly difficult for a criminal defendant, let alone a person subject to civil immigration enforcement, to elicit evidence of improper motives or unethical illegality by US attorneys or other government lawyers.

The US Supreme Court has long established very high bars even to discovery for claims of improper prosecutorial motives and justified these by “presumption of regularity” on the part of government lawyers. It was this premise of trustworthiness that Judge Perry challenged forthrightly on May 21.

If the law makes it easy to hide unethical or unlawful actions by federal prosecutors, and evidence of such malfeasance in politically sensitive cases is growing, consider what follows: The public likely knows only a fraction of what has occurred.

The immediate cause of this apparent sea-change in the ethics of government lawyering is in plain view. After targeting left-of-center critics of his policies as “domestic terrorists” in National Security Presidential Memo 7 last year, the White House has pushed federal enforcement to “Go Big and Go Loud” against those who protest its policies. As one official put it, there would be “coordinators” in US Attorneys’ offices around the country “hounding” federal agents to make cases.

Trump administration critics will jump on such evidence to decry what they would call unconstitutional and even authoritarian tactics. However justified those accusations, they elide a deeper and potentially more troubling dynamic. This pattern of ethical breaches and politically driven illegality on prosecutors’ part is a logical, perhaps inevitable, effect of federal judges’ decisions.

Jurists like Judge Perry may have good reason to be steamed at prosecutors. But as a whole, the judiciary might do well to ponder its own responsibility for these manifest and conceded injustices.

Two recent tendencies in federal law are contributing to these illegalities in important ways.

First, the Supreme Court has been driving a reading of the Constitution called the “unitary executive” doctrine. A central tenet of this doctrine is that the president has unfettered removal authority over subordinates—perhaps with the exception of Federal Reserve governors. The doctrine lacks a textual foundation in the Constitution and instead is based on a bad reading of history. Its ascendancy undermines originalist judges’ pretentions to integrity and coherence.

The practical effect of the unitary executive doctrine is to increase White House control over the agents within the executive branch who decide when and how law is enforced. Perhaps there is some benefit to this change—but as Judge Perry saw on Thursday, it has a dark side. The unitary executive doctrine is a recipe for misusing the awesome powers of federal investigation and prosecution. And such misuse is no longer a hypothetical matter.

Second, even where governmental illegality is proven, the federal courts have bent over backward to ensure that there are no consequences, either for the official individually or the government as a whole. In part, this is a consequence of what I call a collapse in individual remedies for state violence. Judges who implicitly embrace the role of the state in deterring crime dismantle the machinery of deterrence when it comes to state actors’ lawbreaking.

Perhaps the most troubling example of this tendency was a decision by the US Court of Appeals for the D.C. Circuit in April to eliminate district judges’ power to hold government lawyers in contempt when cases involve “national security” or “diplomacy.” The two Trump appointees responsible for this startling and dangerous decision effectively handed the government a blank check to abuse the judicial system. They have declared that federal judges are just rubber stamps who must endorse whatever the government does, and look away when its agents spurn the law.

The exemption for “national security” is especially worrying because its application depends on unpredictable subjective judgment lacking any basis in written law. As a result, it may well metastasize in the future in dangerous ways. Such a decision endorsing government illegality aimed at thwarting judicial review, which to my mind can hardly be squared with the judge’s oath, raises the question why we have judges in the first place.

Against that dismaying context, Judge Perry’s clear and forthright condemnation of state illegality is to be welcomed. It is cause for celebration for those who aren’t merely fair-weather friends of the First Amendment. And it is cause for hope that at least some in the federal judiciary understand that a government that acts lawlessly isn’t a government that likely will keep, or even deserve, the respect of its citizens.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Aziz Huq teaches law at the University of Chicago Law School. His book on the American dual state will be published next year.

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