MEMORANDUM FOR THE ATTORNEY GENERAL
THE SECRETARY OF HOMELAND SECURITY
SUBJECT: Preventing Abuses of the Legal System and the Federal Court
It is imperative that attorneys and law firms that stray from the parameters of U.S. law and ethical standards are held accountable in an effective manner. This accountability is of utmost importance when the misconduct of legal professionals jeopardizes our national security, public safety, or the integrity of our electoral processes.
Recent instances of egregious ethical violations are alarmingly frequent. Take, for example, Marc Elias, founder and chair of Elias Law Group LLP, who played a pivotal role in fabricating a misleading “dossier” with the intent to provide a fraudulent justification for federal investigations into a Presidential candidate, thereby attempting to manipulate the electoral outcome. Notably, Elias sought to obscure the involvement of his client, the unsuccessful Presidential contender Hillary Clinton, in this dubious endeavor.
The immigration system is another battlefield where rampant deceit and unfounded claims have supplanted the constitutional rights afforded to the President under Article II of the U.S. Constitution. There are numerous instances where the immigration bar and influential pro bono practices within Big Law coach clients to mask their histories or fabricate details about their situations in asylum claims, all with the goal of bypassing immigration policies designed to safeguard our national security and misleading authorities into granting unwarranted relief. The burden on the Federal Government to gather evidence to counter these fraudulent claims is immense. Such fraud not only undermines the integrity of our immigration laws but also tarnishes the legal profession as a whole. The consequences are dire, as evidenced by tragic incidents involving innocent victims and the significant strain on taxpayer resources intended for American citizens.
Federal Rule of Civil Procedure 11 explicitly prohibits attorneys from engaging in unethical behavior in federal courts. It mandates that legal filings must not be presented for “improper purposes,” such as harassment, unnecessary delays, or inflating litigation costs (FRCP 11(b)(1)). Attorneys are required to ensure that their legal arguments are supported by existing law or represent a genuine argument for extending or modifying current law (FRCP 11(b)(2)). Furthermore, any factual statements made must be “reasonably based” on evidence or a belief in the evidence’s existence (FRCP 11(b)(3)-(b)(4)). When these standards are breached, opposing parties have the right to file for sanctions (FRCP 11(c)). The Rule also stipulates that sanctions can be pursued against attorneys and their firms, reflecting the grave obligation that legal practitioners have to uphold the rule of law and maintain the integrity of our legal system. Additionally, Rule 3.1 of the Model Rules of Professional Conduct asserts that a lawyer must not initiate or defend a proceeding unless grounded in non-frivolous legal and factual basis, including a good faith argument for changing existing law.
Regrettably, a significant number of attorneys and law firms have consistently flouted these essential requirements, particularly when litigating against the Federal Government or engaging in baseless partisan challenges. To rectify these issues, I hereby direct the Attorney General to pursue sanctions against attorneys and law firms that partake in frivolous, unreasonable, and vexatious litigation against the United States or in dealings with our executive departments and agencies.
Moreover, I instruct the Attorney General and the Secretary of Homeland Security to prioritize the enforcement of their respective regulations governing legal conduct and discipline, as outlined in 8 C.F.R. 292.1 et seq., 8 C.F.R. 1003.101 et seq., and 8 C.F.R. 1292.19.
Furthermore, I mandate that the Attorney General takes appropriate measures to refer any attorney whose actions in Federal court or before any Federal Government component appear to contravene professional conduct rules to disciplinary action. This includes scrutiny of claims and contentions, especially in instances involving national security, homeland security, public safety, or election integrity. In executing this directive, the Attorney General must consider the ethical responsibilities law partners have in supervising junior attorneys, potentially implicating partners for the unethical conduct of their subordinates.
When the Attorney General identifies conduct warranting sanctions or other disciplinary actions against an attorney or law firm in litigation against the Federal Government, it is required that, in consultation with relevant senior executive officials, recommendations be made to the President via the Assistant to the President for Domestic Policy. These recommendations may include reviewing security clearances held by the attorney or termination of any Federal contract under which the attorney or law firm has been engaged.
I also direct the Attorney General, in consultation with pertinent senior executive officials, to evaluate the conduct of attorneys and their firms in litigation against the Federal Government over the last eight years. Should the Attorney General uncover misconduct warranting further action, such as frivolous litigation or fraudulent practices, recommendations to the President should be made, potentially involving reassessment of the attorney’s security clearances or termination of contracts.
Law firms and individual attorneys wield considerable power and bear the responsibility to uphold the rule of law, justice, and order. The Attorney General, alongside the Counsel to the President, shall periodically report to the President on advancements made by firms in realizing this optimistic vision.
