Justice Department Ethics and the McDade-Murtha Citizens Protection Act

Justice Department Ethics and the McDade-Murtha Citizens Protection Act

Order Code RS20064
February 17, 1999
CRS Report for Congress
Received through the CRS Web
Justice Department Ethics and the
McDade-Murtha Citizens Protection Act
(name redacted)
Senior Specialist
American Law Division
Summary
This is an abridged version of Justice Department Ethics and Section 801 of the
Omnibus Appropriations Law for Fiscal Year 1999, CRS Report RL30060, without the
citations, footnotes, authorities and appendices found in the more detailed presentation.
Section 801 of the omnibus appropriations law, a proposal originally offered by
Congressmen McDade and Murtha and passed in October of 1998, P.L. 105-277,
requires federal prosecutors to follow state and federal rules of professional ethics in
effect in the states where they conduct their activities. It also continues in place the sixty
year old directive that federal prosecutors follow the ethics rules promulgated by the
states in which they are licensed to practice. Proponents claim the change will confirm
that federal prosecutors must follow the same ethical rules as other lawyers and will
enhance the prospect of some protection against wayward federal prosecutors.
Opponents charge that it will implicitly undermine the Attorney General's authority to
preempt state laws that conflict with federal law enforcement interests and that in doing
so it will jeopardize the use of undercover techniques against terrorists, drug kingpins
and child predators.
Section 801
Section 801 of P.L. 105-277, declares that "[a]n attorney for the Government shall
be subject to State laws and rules, and local Federal court rules, governing attorneys in
each State where such attorney engages in that attorney's duties, to the same extent and
in the same manner as other attorneys in that State."
The phrase "attorneys for the government" is defined to include only Justice
Department attorneys and those exercising federal litigation authority, including federal
independent counsel. The Attorney General is empowered to promulgate the regulations
necessary to implement the statute's instructions. The section's provisions become
effective six months after the date of enactment.
Congressional Research Service ˜ The Library of Congress

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Elsewhere the appropriations law reminds the Department of the Justice that its
attorneys must comply with the ethical standards of the state bars to which they are
admitted.
Legislative Background
Section 801 is a remnant of concerns that extend back to the 101st Congress when
the House Government Operations Committee recommended among other things a
thorough examination of the ethic rules applicable to Department attorneys and expressed
concern over "the problems inherent in any system of self-policing and regulation,"
H.Rept. 101-986, at 35 (1990).
The issue lay dormant until the 104th Congress, when Representative McDade
introduced a bill, using essentially the same language as the recently passed section 801.
The House Judiciary Courts and Intellectual Property Subcommittee held hearings, but
Congress took no other action.
Congressman McDade reintroduced the measure early in the 105th Congress (H.R.
232). He and Congressman Murtha offered a second measure, the Citizens Protection Act
(H.R. 3396), which identified various forms of punishable conduct and established a
Misconduct Review Board to ensure enforcement of basic ethical standards. There were
no committee hearings held, nor reports issued, on either bill, but the House
Appropriations Committee incorporated the Citizens Protection Act into its omnibus
appropriations measure (H.R. 4276). The Committee's report tersely explained that the
portion of the bill which was eventually enacted was designed to confirm that the
Attorney General did not have the authority to exempt Department attorneys from the
ethical standards to which other attorneys were held. The Senate version of the measure
had no similar provision.
The conference committee for the appropriations package stripped out the punishable
conduct and review board sections leaving section 801 to be passed with the rest of the
compromise bill. Senators Hatch and Leahy, the Chairman and ranking minority member
the Senate Judiciary Committee, greeted section 801's passage with dismay and expressed
the hope that it would amended prior to becoming effective.
During floor debate on the amendment to strike the Citizens Protection Act from the
appropriations package, several Members of the House spoke from personal experience
of both specific instances and of general patterns of prosecutorial misconduct. Their
disclosures often ended with exasperated observations about the ineffectiveness of
existing preventive and remedial measures. They were met by proponents of the
amendment who cautioned against overreaction and the dangers of subjecting federal law
enforcement interests to state regulatory authority.

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Apparent Points of Disagreement
While no single source in the legislative background supplies a full explanation or
even a full identification of the issues reflected in section 801, the legislative record taken
as a whole reveals the positions of proponents and opponents. Proponents maintain:
!
there are instances of federal prosecutorial abuse
!
traditional checks on federal prosecutorial abuse have eroded; the courts
have been increasingly reluctant to use their supervisory powers to prevent
or correct prosecutorial abuse; the check once afforded by scarce resources
no longer applies; the incentives for abuse have become more attractive
!
the judicial remedies available for prosecutorial abuse (retrial) are costly
and do little to discourage or punish overzealous prosecutors
!
the Department of Justice's system of self discipline has not been effective
!
the disciplinary mechanisms available for enforcement of standards of
conduct for the legal profession offer an impartial means of deterring and
punishing prosecutorial abuse
!
the disciplinary mechanisms are more effective if they can be invoked
where the abuse occurs rather than where the prosecutor is admitted to
practice
!
the Attorney General lacks authority claimed by the Justice Department
to waive the ethical standards to which federal prosecutors must otherwise
adhere
!
the enforcement of standards of professional conduct poses no threat to
effective federal law enforcement; should such a threat develop the
appropriate response is federal legislation
Critics contend:
!
there are few instances of federal prosecutorial abuse
!
charges of prosecutorial abuse are the work defense lawyers attempting to
encumber effective law enforcement
!
the Justice Department has an effective internal means of dealing with any
wayward federal prosecutors
!
federal prosecutors have and will continue to observe the highest
standards of professional conduct, but under the guise of ethical standards
policy determinations (in conflict with existing federal policies) states
have introduced into the rules, i.e.:

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- "no contact" rules that hamstring undercover and other legitimate
investigative techniques
- requiring the disclosure of exculpatory evidence to the grand jury
- requiring prior judicial approval before serving a subpoena on an
attorney to appear before the grand jury and testify about client-related
matters
!
the Attorney General has preemptive authority to determine the manner in
which federal laws are enforced
!
state authorities have no power to preempt conflicting law enforcement
policies and standards of conduct founded on federal law
!
federal law enforcement policies should be determined by federal
authorities not state bar authorities (who are often captives of the defense
bar)
!
state authorities have no power to pre-empt conflicting federal law
enforcement policies and standards of conduct founded on federal law
!
requiring federal law enforcement authorities to comply with the multitude
of state bar requirements would impair federal multistate investigations

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