The Ballad of Eagle Ed

Another Potential Complication for Bar Grievances Against Administration Lawyers

Law360 reports that Lawyers Defending American Democracy (LDAD) has filed an ethics complaint against Drew Ensign, a senior DOJ lawyer (his full title – are you ready for this? – is Deputy Assistant Attorney General, United States Department of Justice (DOJ), Civil Division, Office of Immigration Litigation – General Litigation and Appeals Section), for misconduct in connection with matters including the assertion of the Alien Enemies Act as the basis for deporting a number of alleged members of the Venezuelan gang Tren de Aragua, and the deportation of Kilmar Ábrego García to the CECOT torture prison in El Salvador. I wrote a couple of posts back when these events were occurring. Now the LDAD bar grievance alleges a number of violations by Ensign, in his capacity as a senior lawyer with supervisory responsibilities over these proceedings.

The complaint is very well done. It alleges specific facts establishing violations of black letter rules of professional conduct of D.C. and Maryland, including Rule 3.3(a) (false statements of fact or law to a tribunal), Rule 3.1 (asserting frivolous claims or contentions), and Rule 5.1 (failure to reasonably supervise subordinate lawyers). I don’t have a problem with the complaint on the substance, but I do have a prediction for how the proceedings will go. In particular I want to talk about something that might be a barrier to using state bar grievance proceedings against Trump administration lawyers. No, not the recent effort by the Justice Department to promulgate rules that would allow the DOJ to seek to stay proceedings pending in state disciplinary tribunals (which I wrote about recently). Not only are those rules not final yet, but it’s unclear whether they will change much in the landscape of attorney discipline, given the McDade Amendment and also the fact that the proposed rules are kind of weak sauce.

There’s an additional potential impediment to using state grievance proceedings to hold administration lawyers accountable, however, and that’s the federal removal statute. It figured prominently in the disciplinary proceedings against Jeffrey Clark, who was one of the lawyers advising Trump at the end of his first term that Vice President Pence had the authority to certify alternate slates of electors. (One of the great disses in recent memory was by Acting Attorney General Richard Donoghue, who told Clark, then the head of the Environmental and Natural Resources Division at the DOJ, “how about you go back to your office and we’ll call you if there’s an oil spill.”) Clark’s lawyers sought to remove the disciplinary proceeding to federal court, but the court granted the motion by the Office of Disciplinary Counsel to remand. In re Clark, 678 F.Supp.3d 112 (D.D.C. 2023). The D.C. Circuit affirmed on the ground that Clark’s removal was untimely, not reaching the issue of the application of the removal statute.

I expect the removal statute will come up in the proceedings against Ensign, and in any disciplinary action against Pam Bondi if the Florida Bar actually takes it up now that she is no longer a constitutional officer. This is different from the perennial issue of state vs. federal regulatory authority over the conduct of lawyers employed by the federal government, the McDade Amendment, and the pending DOJ rulemaking. It may be confused with it, though, so I want to spend some time talking about the removal statute here.¹ This is going to be a long and complicated post – I’m kind of using it as an opportunity to get my mind around the issue – but I think it’s important to go through the removal statute as applied to administration lawyers.

This also is an opportunity to me to write about a case I’ve been meaning to address for a while: The disciplinary complaint against former Interim U.S. Attorney for the District of Columbia, Ed Martin (see reporting here from Reuters, CBS News and, awesomely, the Georgetown student newspaper, The Hoya). The Martin grievance proceeding is a good way to look at a couple of issues with the use of these grievances in response to misconduct by Trump administration lawyers. The first is the mismatch between many of these lawyers’ activities and the appliable rules of professional conduct. The second is the federal officer removal statute and whether that might prove to be an impediment to imposing professional discipline on government lawyers.

But first, let’s get up to speed on Ed Martin.

Remember Ed Martin?

“Eagle Ed” Martin has a long history with MAGA-aligned (and previously tea party-aligned) causes. His monicker, used as his Twitter/X handle, indicates his origins as an operative with Phyllis Schlafly’s Eagle Forum in Missouri. For readers too young to remember, Phyllis Schlafly was running the anti-woke schtick long before it became a part of mainstream Republican rhetoric, leading a campaign against ratification of the Equal Right Amendment and continuing a long career of anti-reproductive right and anti-LGBTQ rights activism. Schlafly and the Eagle Forum were early social conservative endorsers of Trump in the 2016 election campaign.

During the first Trump administration Martin briefly served as a political commentator on CNN, which hired him even after he had proven himself too toxic and hard-right for Missouri Republican politics and co-authored a book called The Conservative Case for Trump, which was mostly an anti-immigration screed. While in Missouri, Martin was discovered ghostwriting attacks on a state court judge presiding over a case involving the Eagle Forum in which Martin was a defendant. (A judge found him in civil contempt in one of the Eagle Forum cases and he was also found liable for defamation of Schlafly’s daughter, who was his rival for control of the organization.) Martin also has a long pattern of making racist comments, as summarized by the Guardian:

Martin’s rhetoric includes falsely claiming Kamala Harris is “self-identified” as Black and calling her the new Rachel Dolezal, claiming Planned Parenthood targets Black communities for abortions, claiming that the supreme court justice Sonia Sotomayor made racist comments to white males about her own identity and invoking false claims about Dr Martin Luther King Jr to affirm support for the Republican party and the Tea Party movement.

Trump, naturally, thought this would be just the right guy to lead one of the nation’s most important U.S. Attorney’s offices, so he appointed him Interim U.S. Attorney for the District of Columbia. But the controversies Martin trailed in his wake ensured that he would not be confirmed by the Senate (he was opposed by Senator Thom Tillis, who was recently instrumental in getting the Justice Department to drop its criminal investigation of Federal Reserve Board Chair Jay Powell), so he remained in an interim role. He immediately got to work firing or demoting experienced lawyers in the office who had worked on January 6 prosecutions. He also engaged in ridiculous stunts like skulking outside the home of New York State Attorney General Letitia James while wearing a trenchcoat, looking like he got lost on the way to a Halloween party dressed as McGruff the Crime Dog.

From the outset I saw Martin as a familiar figure from the first Trump administration, someone who was more of a doofus than a danger. (See also Giuliani, Rudy.) The second Trump administration is characterized by a greater proportion of competent characters, whatever one might think of their other qualities, such as Todd Blanche and Pam Bondi, although there are figures like Kash Patel and, formerly, Kristi Noem, who carry on the great doofus tradition of Trump 1.0. Jeanine Pirro is an interesting intermediate case, with an unstable mix of competence and doofusness. (I think there may be a future post in here, about the optimal mix of dangerousness and doofusness to serve effectively in Trump 2.0.)

Martin’s conduct was egregious enough that he managed to get himself removed from the president’s Weaponization Working Group which, with typical Trumpian irony, was set up to do exactly the opposite of what its name suggests, by coming up with ways to use government power against Trump’s political adversaries. Martin apparently got himself canned from the Working Group by leaking grand jury information from ongoing investigations against Letitia James and Adam Schiff. Disclosing grand jury information is a serious no-no, but so are lots of other things that this Justice Department has overlooked, so it kind of makes one wonder who Martin got crosswise with in the Department.

Bar Grievances Against Martin

Ridiculous or not, it didn’t take long before Martin’s conduct in office provoked a complaint to the D.C. Bar (formally the Office of Disciplinary Counsel of the D.C. Court of Appeals, the highest court in the jurisdiction) by Democratic Senators on the Judiciary Committee.

The Senate Democrats’ letter cited several provisions of the D.C. Rules of Professional Conduct that Martin’s conduct violated. Some of this conduct also led to a grievance filed by two civil society organizations – the Free Press Foundation and Demand Progress. But as far as I can tell, those complaints, from early 2025, kind of sat around without any action by the D.C. Bar Office of Disciplinary Counsel until March of this year. Some reporting indicates the bar was finally prodded into action by a complaint filed by a retired judge.

Phillip Argento, a Georgetown graduate and retired judge, wrote to the DC Bar, requesting an investigation of what he called Martin’s apparent professional misconduct. Argento wrote that, as someone who teaches at his church, he viewed Martin’s letter to the school as an attack on religious freedom.

Indeed, most of the conduct cited in the pending specification of charges relates to Martin’s attempt to bully Georgetown Law School over the administration’s favorite boogeyman, DEI (as always, left undefined). Martin sent a letter on February 17, 2025, to the law school demanding that it answer his questions:

It has come to my attention reliably that Georgetown Law School continues to teach and promote DEI. This is unacceptable. I have begun an inquiry into this and would welcome your response to [a bunch of questions].

Martin said he “look[ed] forward to [the dean’s] cooperation with my letter of inquiry after request.” In case you’re wondering, federal investigations do not normally begin with a “letter of inquiry,” but Martin was winging it.

The dean at the time of Georgetown Law School, Bill Treanor, in one of the first episodes of a leader actually standing up for the values of his institution, told Martin to pound sand. He deftly turned the religious freedom argument beloved of conservatives back on Martin:

As a Catholic and Jesuit institution, Georgetown University was founded on the principle that serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical, and spiritual understanding. For us at Georgetown, this principle is a moral and educational imperative. It is a principle that defines our mission as a Catholic and Jesuit institution. . . .

Your letter challenges Georgetown’s ability to define our mission as an educational institution. It inquires about Georgetown Law’s curriculum and classroom teaching, asks whether diversity, equity, and inclusion is part of the curriculum, and asserts that your office will not hire individuals from schools where you find the curriculum “unacceptable.” The First Amendment, however, guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it.

What Is Martin Charged With?

The Martin disciplinary complaint is a good example of a point I often make about legal ethics, which is that it’s tempting to conflate (1) lawyers doing bad, sleazy, or unethical (in ordinary language terms) stuff with (2) conduct that falls within the prohibition of the relevant rules of professional conduct. A lot of online complaining about lawyers and wishcasting their disbarment arises out of the slippage between these two senses of the term. In the end, Martin’s oafish response to the complaint may provide a sufficient basis to sustain it, but without his clumsy efforts to shut down the proceeding, I don’t think this would have been a good complaint at all.

After recounting the story of Martin’s bullying threats to Georgetown Law, the Specification of Charges (¶ 11) says “Mr. Martin knew or should have known that, as a government official, his conduct violated the First and Fifth Amendments to the Constitution of the United States.” This, bar counsel claims, is conduct violating D.C. Rule 8.4(d), stating that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct that seriously interferes with the administration of justice.”

Making bogus threats is obnoxious and arguably inconsistent with the highest ideals of conduct for federal prosecutors. And there are, you know, procedures for conducting investigations, including limitations on the issuance of subpoenas, contact with represented parties, and things like that. In particular, the Justice Manual requires federal prosecutors to “reasonably accommodate religious observance and practice” to the greatest extent practicable. (Dean Traynor’s response may have been a subtle allusion to this duty.) Just for the sake of argument, though, grant the premise of Martin’s investigation, which is widely shared within the Trump administration, that diversity, equity, and inclusion programs constitute unlawful racial discrimination. Yes, there are proper channels for conducting this kind of investigation, including coordinating with the Department of Education and not just going freelance with threats of criminal prosecution, particularly since even if a DEI program were unlawful it’s almost certainly not criminal. But to call this conduct that “seriously interferes with the administration of justice” is a real stretch. That’s true even if the conduct were arguably protected by the First Amendment; nothing prevents a lawyer from trying to tee up an issue for litigation that involves constitutional rights.

I haven’t personally poked around right-wing media following the disbarment of John Eastman, but I am reliably informed that legal commentators are freaking out over it. The words “lawfare” and “weaponization” are tiresome (I wrote a post last year on the schtick of lawfare), but there is nevertheless a core equity concern that lawyers engaging in similar conduct be treated similarly. I’m a former civil litigator, and in my experience lawyers send threatening and obnoxious letters (we used to call them “nastygrams” ) all the time, and the response of a receiving lawyer was to take a look and decide if there’s any substance to it. If not, tell the letter writer to take a hike. That’s exactly what Dean Traynor did, properly, in response to Martin’s letter. Problem solved. I don’t see the need to pursue a bar grievance here, particularly using the heavy artillery of serious interference with the administration of justice.

Count II of the specification of charges is pretty funny, though, because Martin went on to commit an own-goal that may keep the proceeding against him alive. He sent several letters ex parte to the Chief Judge of the D.C. Court of Appeals, whining about the behavior of disciplinary counsel and asking if it’s possible to have a meeting a “find a way forward” (in other words, can you make this matter go away?). The court replied, gently but firmly, that there are procedures for dealing with disciplinary grievances and ex parte contacts are improper. Martin’s conduct violated D.C. Rule 3.5(b), and this is a clear and unambiguous provision. Moreover, it’s one that courts and disciplinary authorities take seriously.

The Federal Officer Removal Statute

Following the filing of the disciplinary action against him, Martin filed a notice of removal of the proceeding to federal district court. The federal officer removal statute, 28 U.S.C. § 1442(a)(1) provides:

A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

The District of Columbia is included within the definition of “state” by § 1442(d)(5).

Jeffrey Clark, a DOJ lawyer who played a central role in urging Vice President Mike Pence to go along with the alternate elector scheme cooked up by John Eastman (which i wrote about recently here), sought to remove the disciplinary grievance filed against him by the D.C. Bar Office of Disciplinary Counsel. It’s worth reading the district court’s decision granting the motion by the Office to remand, but I’ll quickly summarize the court’s reasoning:

• The apparatus of the D.C. Bar’s Board on Professional Responsibility, Office of Disciplinary Counsel (“ODC”), and Hearing Committees, are within the authority of the District of Columbia Court of Appeals, created by Congress in 1970 as an Article I court. (Outside of D.C., where state courts of last resort do not depend for their existence on federal legislation, the State X disciplinary authority would similarly be within the authority of the state judiciary.²) The D.C. Court of Appeals created the ODC and Hearing Committees by regulation pursuant to the federal statute.

• A bar disciplinary action is neither civil nor criminal, but is a sui generis regulatory proceeding aimed at vindicating the authority of the state judiciary to regulate the practice of law by lawyers it has admitted to practice. On this, the definitive Wolfram treatise (§ 3.4.1, pp. 99-100) agrees:

  Courts uniformly insist that discipline is not a “criminal” proceeding, to which the stricter requirements of due process apply. . . . But the proceedings are also not governed by state administrative procedure acts or, unless the court so provides, by civil rules of procedure and evidence. Instead, discipline is a hybrid proceeding with a legal complexion of its own.

• Sometimes these proceedings are referred to as “quasi-criminal.” Citing a 6th Circuit case from 1989 called Kolibash, Clark argued that disciplinary proceedings should be considered functionally equivalent to criminal proceedings, because . . . I guess because reprimands, suspensions, and disbarments function kind of like punishment. The district court responded that functional tests are kind of out of fashion these days, what with all of the emphasis on the plain language of the statute, and the statute plainly says “civil action or criminal prosecution” (no “quasi-“ in there).

• Also Kolibash predates the McDade Amendment, 28 U.S.C. § 530B, and “any argument that the Board’s disciplinary proceeding should fit within a functional definition of ‘criminal prosecution’ for purposes of removal under section 1442 is foreclosed by reference to section 530B.” The court cited In re Doe, 801 F. Supp. 478 (D.N.M. 1992), which I talked about in my post about federal government lawyers being subject to discipline in their admitting state’s disciplinary institution. Doe distinguished Kolibash, but in any case all of this is irrelevant in light of McDade.

• Clark’s argument for a broad construction of the removal statute is that federal officers require the “protection of a federal forum.” The district court cites a bunch of cases involving conflicts between federal and state interests, but then cites the McDade Amendment for the proposition that there’s no conflict here because it was resolved in favor of a state forum by McDade:

  In stark contrast to the divergent state and federal approaches to tribal land use, revenue collection, and slaveholding that motivated early attempts to craft federal officer removal policy, here, through section 530B, Congress has explicitly directed that federal officers be subject to state bar rules. With federal and state interests thus aligned, nothing in the cases cited by Mr. Clark, or in the history of the federal officer removal statute, supports resolving any remainder of ambiguity concerning the removability of a state bar disciplinary proceeding in favor of granting a federal forum. Indeed, well-established principles of comity for state proceedings counsel against it.

The court concluded that, since “Congress has committed the regulation of federal government attorneys to the state and courts where they practice,” the disciplinary proceeding should be remanded to the D.C. Bar.

Which leads to the interesting open question that might come up in connection with the Ed Martin or Drew Ensign bar grievance proceedings: Will this still be good law after the DOJ’s final rule goes into effect? Remember, the proposed rule would provide that “the Attorney General shall have the right to review the allegations in the first instance” in a state grievance proceeding. The Attorney General may then “inform the appropriate bar disciplinary authorities of the results of her review, including if the review finds that the attorney for the government did not violate any rule of ethical conduct while engaging in that attorney’s duties.” If the state tells the Attorney General to kick rocks, “the Department shall take appropriate action to enforce this regulation or to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations.”

The highlighted language is the extent of the AG’s power here. The term “take appropriate action” is ominously undefined, but given the McDade Amendment, which provides that “an attorney for the Government shall be subject to State laws and 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,” I’m not sure what action would be appropriate. As the ABA comment on the proposed rulemaking puts it, the proposed rule attempts to grant the AG power that he or she does not have, following McDade.

I predict that any federal government lawyer who gets a grievance against them that isn’t immediately dismissed on other grounds will try to remove the proceeding to federal court until there’s some judicial resolution of the conflict between the removal statute and the McDade Amendment. On the substance I tend to think the new rules, which have to be interpreted consistently with the McDade Amendment, can’t magically transform a D.C. Bar grievance proceeding into a criminal proceeding for the purposes of the removal statute, and Martin does not present a particularly sympathetic case for invoking the idea of quasi-criminal proceedings. Wouldn’t it be hilarious if a clown like Ed Martin ended up making law that was bad for less flamboyant but more dangerous actors like Drew Ensign?

1. An important case I talked about in my post about the McDade Amendment and state bar discipline of federal lawyers, In re Doe, 801 F. Supp. 478 (D.N.M. 1992), deals with both the authority of state courts to discipline federal government lawyers and the (non-)removability of disciplinary proceedings under 28 U.S.C. § 1442.

2. An important passage cited in the Clark removal decision, from Leis v. Flynt, 439 U.S. 438, 442 (1979):

Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers