Bondi’s Attorney Advocacy Memo Raises Independence Concerns

A new memo warning Justice Department attorneys against refusing to advance legal arguments they disagree with is accelerating concerns about the agency’s independence under President Donald Trump.

Attorney General Pam Bondi’s memo, issued hours after she was sworn in on Wednesday, refers to government attorneys as the president’s lawyers. It also says that lawyers who don’t sign briefs or appear in court due to their personal political views will face discipline, including potentially being fired.

Legal experts, including some former Justice Department employees, said the memo damages the agency’s independence. They also said it could hurt attorneys who don’t want to advance legal arguments they might view as frivolous, forcing them to resign rather than face potential court sanctions.

“The tone that it sets is that you have to put your loyalty to Donald Trump above your oath” to the laws and Constitution of the United States, said Noah Rosenblum, a New York University professor of constitutional law and legal history.

Former Attorney General Merrick Garland underscored the department’s independence throughout the Biden administration, repeatedly saying government attorneys were to act “without fear or favor.” The department also famously implemented changes after the Watergate scandal led to Richard Nixon’s resignation meant to strengthen the firewall between the agency and the White House.

Rosenblum said this memo seems to undercut that ideal. “We’re seeing Donald Trump treat the Justice Department as his own personal law firm, to do his own personal bidding even when it is in violation of the laws and interests of the United States,” he said.

Benjamin Grimes, a Columbia Law School lecturer who previously trained DOJ attorneys on professional responsibility issues, said the memo “seems to be intended to scare people into line or out the door.” Bondi’s memo focuses on DOJ attorneys’ need to “zealously defend” the interests of the United States, as set by the president.

“I don’t get the sense that many folks who are part of the new administration have much care or concern for the government’s fundamental function to serve the people. This is especially true at the DOJ (including the FBI),” Grimes said in an email. “The work the DOJ does is critical to the nation’s safety and security and I’m afraid we’re at a tipping point.”

Under Pressure

Trump’s Justice Department has hit the ground running, defending some of his early executive actions that have prompted a wave of litigation.

That work of defending those measures falls to the department’s civil division—the same attorneys who are most likely to be impacted by the new memo.

A former Justice Department official said that department attorneys can benefit from having flexibility in figuring out the best legal argument they can present in court, as they regularly face difficult legal questions.

“There’s so much nuance to the assessment that you want to have an environment where people can speak their mind and say what they think,” the former official said. “Ultimately everyone respects that you go with the chain. But if it’s just top-down, ‘find a way to do it,’ it really chills having the discussions that make the cases better on the merits.”

Grimes said that line attorneys must comply with an ethics rule against making frivolous arguments in court. He said that if a lawyer has a question about whether making a certain claim would violate that rule, they could go to a supervisor and later rely on that more senior lawyer’s “reasonable resolution” of the ethical dilemma to protect themselves from a potential inquiry into their work.

He said that, before this memo, DOJ lawyers who didn’t want to work on a certain legal argument could either ask to be reassigned, or resign.

“It’s almost impossible to articulate the impact that a mass exodus of legal and law enforcement talent from the DOJ might have—separate and apart from the impact of pulling back from supporting and enforcing protections based around protected classes,” Grimes said.

The Justice Department during the first Trump administration ran into some issues with attorneys defending its laws. A senior career staffer, Joel McElvain, resigned in 2018 after the department withdrew from defending the Affordable Care Act in federal court.

Judges also blocked Trump administration efforts to swap out its trial teams after the government briefly sought to still put a question on citizenship status on the 2020 census despite an adverse Supreme Court ruling. Lawyers who had originally argued the case couldn’t do so as they would have to change their legal positions.

Rosenblum noted that some DOJ attorneys have already had their arguments closely scrutinized by judges, including in cases involving Trump’s executive order seeking to restrict birthright citizenship. Multiple judges have blocked that order, including Senior US District Judge John C. Coughenour of the Western District of Washington.

“It has become ever more apparent that to our president the rule of law is but an impediment to his policy goals,” Coughenour, a Ronald Reagan appointee, said Thursday in issuing a preliminary injunction against the birthright citizenship order. “The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain.”

Grimes said that the department has historically “been held in high regard by the courts.”

“I think it’s too soon to say what impact these changes might have on that reputation, but I’ll admit I’m concerned,” he added.