The Ethics of Drafting Unenforceable Executive Orders

One of the notable features of the early months of the Trump 2.0 administration is the sheer brazenness of so many of his actions, relative to the baseline of what we’ve all grown accustomed to thinking is normal. My colleague Mike Dorf has been writing a series of blog posts called “Wait, Can He Actually Do That?” (Parts 9, 10, and 11 here), and that does seem to be the right way to capture the attitude of most legal observers.

From the legal ethics point of view, Mike’s question can be restated as, “Wait, Can Lawyers Actually Do That?” In other words, aren’t there limits, either as a matter of regulation or as a matter of professional norms, traditions, craft values, and . . . you know, ethics, that should stop lawyers from drafting one of these flagrantly unconstitutional executive orders or advising the president that he has the legal authority to do it?

We know lawyers are involved. Although the EO’s clearly bear the hallmarks of Trumpian rhetoric (“one of the most partisan investigations in American history”), and Trump enjoys signing them with a flourish and a Sharpie marker in the Oval Office, most of the work of actually drafting them would ordinarily fall to lawyers in the Justice Department or White House Counsel’s office. We don’t know who was actually involved. AG Pam Bondi’s chief of staff Chad Mizelle argued the government’s position in defense of the Perkins Coie EO (which is highly unusual), so maybe he had a role. Ruth Marcus has a new article in the New Yorker that reports Boris Epshteyn was in the meeting at which the chair of Paul Weiss negotiated the firm’s surrender – I mean settlement. This was also reported in the New York Times. Epshteyn has been accused of numerous shady dealings while working for the Trump administration or the transition team, including allegedly shaking down people seeking roles in the administration for payments; Epshteyn also reportedly supported Matt Gaetz as Trump’s Attorney General. Epshteyn is famously pugnacious and very much in line with Trump’s longstanding ethos of hitting back unrelentingly against any of his critics. Perhaps Epshteyn was one of the drafters of the law firm EO’s. (Stephen Miller was reportedly also involved in the negotiations with Paul Weiss, but he is not a lawyer.)

In the ordinary course of events, executive orders are subject to extensive legal review. Early in the administration, Bob Bauer and Jack Goldsmith wrote a detailed Substack article explaining that the Attorney General reviews proposed executive orders as to form and legality. By tradition, this review is delegated to career attorneys in the Office of Legal Counsel, traditionally a highly prestigious office attracting the very best legal talent. As Bauer & Goldsmith explain:

These lawyers do not typically do full-blown legal analyses of the orders, as they would with a legal question for which OLC writes formal legal opinions. But they typically do a serious legal chop on the EO to ensure its legality, and with any EO of substance there is normally a great deal of back and forth to ensure that the facts in the EO are accurate and that the order is lawful.

They conclude that it is highly unlikely that the usual process is being followed:

In sum, the plethora of legal problems in the EOs, the Vought shadow OLC idea, the reliance on outside lawyers instead of DOJ during the transition, and the Leavitt statement are four pieces of evidence that OLC, and the Justice Department more generally, are being sidelined in the legal review process for at least some executive orders, and for presidential actions more generally.

But still, even if it’s Chad Mizelle, Pam Bondi, or Boris Epshteyn, some lawyer is involved in drafting these EO’s. I would be very surprised if it were Trump’s personal handiwork, even if the Constitution nominally assigns to the President the duty to “take Care that the Laws be faithfully executed.”

Whether it is a lawyer at OLC (the usual course of events) or a lawyer/advisor in the White House who has Trump’s ear (probably what’s going on here), the question is, what ethical considerations apply to a lawyer, as a lawyer, drafting an executive order, or advising on it, knowing of, or strongly believing in, its lack of legal authority or violation of the constitutional rights of law firm lawyers or their clients? Should these lawyers be disbarred or face some other type of legal sanction? (Sub-question: Is this a promising source of leverage to resist the lawlessness of the administration? TL;DR answer – no.) Or should we disapprove of what they are doing – again, as lawyers, relative to the ethical standards that apply to lawyers, apart from what you think of the politics behind them?

I’ll look at both the rules of professional conduct perspective and more general normative considerations. Helpfully, there is a unifying theme in both perspectives: The analytical difficulty that many observers have in these cases arises from the non-advocacy context of drafting unenforceable orders. The Attorney General can say the magic words “zealous advocacy” all she wants, but the lawyers who draft these orders are not acting as an advocate at the time, although they may subsequently appear in court to defend them (as was the case with Bondi’s chief of staff, Chad Mizelle). The rules aren’t very well developed in the context of advisory misconduct that does not end up manifesting as either (1) taking a frivolous position in a litigated matter, in violation of rules of civil procedure or Model Rule 3.1 of the Rules of Professional Conduct; or (2) providing assistance in conduct by the client that the attorney knows is a crime or fraud. I share the intuition of many scholars that there has to be something wrong here, but it turns out to be harder than you might think to pin it down using the rules of professional conduct.

This is a long post – sorry about that! I’ve started writing several times only to be overtaken by events. Thanks to David Luban for suggesting that the ethics of drafting unenforceable orders would be an interesting topic. This post feels a bit like an outline of a law review article, so I’ll be interested in whether readers think there’s anything to it. On the other hand, I realize that “outline of a law review article” is going to lead some readers to hit delete right away. I’ll try to make this at least a little more readable than the average law review article.

Before getting to the meat of the analysis, here is a quick recap of the state of play of law firm EO’s as of March 30:

Brief Law Firm EO Recap

The newest EO directed at law firms targets WilmerHale, for the unforgivable sin of having rehired Robert Mueller after his service as Special Counsel investigating allegations of Russian interference in the 2016 presidential election (as Trump refers to it, the phony witch hunt, the Russia hoax, or “Russia Russia Russia”). It follows an EO a few days ago aimed at Jenner & Block, which hired a prosecutor on the Mueller team, and for this reason “engages in obvious partisan representations to achieve political ends.” The Jenner EO also includes the bizarre claim that the firm “supports attacks against women and children based on a refusal to accept the biological reality of sex,” evidently a reference to a lawsuit seeking to protect transgender rights.

Jenner and Wilmer have both filed lawsuits against the government in district court in D.C. Jenner is represented by Cooley and Wilmer by former U.S. Solicitor general Paul Clement. Both complaints are linked from this Politico article. That is the first spot of good news in a while on the rule-of-law front, after Paul Weiss’s surrender and the recent report that Skadden is trying to cut its own deal with Trump. Subsequent reporting confirmed that Skadden did cave, and where Paul Weiss agreed to dedicate $40 million in pro bono legal services “to support White House initiatives,” Skadden reportedly agreed to commit $100 million. (If my math is correct, at this rate, the next firm will be on the hook for $250 million.) Here is the internal email sent to firm lawyers explaining the reasons for cutting a deal.

The first New York Times article on Skadden reports that Trump is clearly relishing the humiliation he is subjecting these firms to:

“They’re all bending and saying, ‘Sir, thank you very much,’” Mr. Trump said, adding that law firms are saying, “‘Where do I sign? Where do I sign?’”

Trump’s gloating may cause readers of a certain age to recall Kevin Bacon’s character in Animal House begging, “thank you, sir – may I have another?” while being ritually spanked in a fraternity initiation. It’s just as humiliating when it happens to law firms.

After Paul Weiss and Skadden bent the knee, it was refreshing to see a clear and powerful statement of exactly what these EOs seek to do, namely to retaliate against the firms for engaging in constitutionally protected advocacy, including of clients or interests that Trump perceives to be adverse to his own political or personal interests. As the Wilmer complaint pointedly notes, the EO is “based on actions WilmerHale has taken in certain client representations before this Nation’s courts, many of which have been successful and drawn plaudits – and certainly not sanctions – from the courts that directly oversaw the litigation.”

The complaints on behalf of Jenner and Wilmer resulted in swift action by district court judges. Substantial portions of both orders were enjoined, with one judge referring to the order punishing Jenner for its pro bono work “disturbing” and “troubling.” The judge also noted the signaling effect of Trump’s campaign:

“The legal profession as a whole is watching and wondering if their courtroom activities . . . will cause the government to turn their eyes to them next,” Bates said.

The district judge who granted the TRO against the Wilmer order may have meant to implicitly reference reports that some law firms had been trying to poach clients from Paul Weiss:

Potential clients are unlikely to hire a law firm on the outs with the federal government, Leon pointed out. “They’re gonna go down the street to a different firm that doesn’t have a sword of Damocles hanging over its head,” he said.

Incredibly, though, the DOJ attorney representing the government in the Jenner proceeding suggested that the administration would keep trying with more orders:

"We should expect that more are going to come, shouldn't we?" Bates asked before he ruled.

"There certainly may be more," Justice Department attorney Richard Lawson responded.

Thus the ethical question: With three district court orders enjoining the EO’s, could a lawyer ethically advise the President that a new EO is legally sound, or participate in drafting such an order?

Ethical Duties In Light of Certain or Possible Legal Infirmities

I think the answer to that question turns on several considerations:

1. What is the current state of the law with respect to the matter?

2. Is there an argument that could be made in good faith (a standard that needs to be explained) for the permissibility of the order even if currently existing law would indicate that the order is not lawful?

3. What, exactly, is the lawyer doing? Is the lawyer just raising a possibility for the client’s consideration, with a candid explanation of the legal risks of the approach? Is the lawyer just spitballing a wild-ass idea, as defenders of John Eastman say he was doing when he advised Mike Pence on the plan to certify an alternate slate of electors in the 2016 presidential election? (More on Eastman below.) Or is the lawyer declaring, in effect, “the law actually does say what I’m saying it says”?

I’ve written recently about the authority of state court-annexed disciplinary bodies to sanction lawyers employed by the federal government and the role of the Office of Professional Responsibility in the Justice Department. I believe it is extremely unlikely (at the level of James Taylor calling to ask if I’d replace Steve Gadd on drums for his summer tour) that any of the lawyers who participated in drafting or advising on these orders will ever face professional discipline. But it would be a mistake to conclude that the rules are irrelevant to this analysis. Lawyers look to them for guidance, and we can refer to them as well when reacting to what lawyers do. Paragraph [16] of the Scope section of the ABA Model Rules of Professional Conduct cautions against taking a Holmesian bad man perspective on the rules. Their function is not only to provide information that might be useful when trying to predict when you might get into trouble. They are also intended to guide action, and presuppose that lawyers will regard them as action-guiding:

Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings.

I realize there is a longstanding critique of professional conduct rules as nothing more than the legal profession protecting its own turf to obtain outsized economic rewards. Combine that view with a strand of law and economics theorizing that goes beyond making positive claims (e.g. people respond rationally to incentives) into normative claims (e.g. that one ought to act only in ways that maximize the satisfaction of one’s interests) and you can get a cynical, almost nihilistic view of professional ethics. That’s what I want to resist, even if disciplinary enforcement of the rules is unlikely. I also want to resist the cynical conclusion even if, as I’ll explain below, the rules may not exactly fit with the misconduct here.

As I said, though, much depends on the state of the law, both as it currently exists and what one might believe in good faith that it may be if asserted and litigated.

Case 1: It’s a Slam-Dunk

Start with a silly, but I think helpful example, inspired by a post I read on Bluesky: I take out a legal pad and write, “Elon Musk is hereby ordered to give Brad Wendel $100 million and a Gulfstream 650ER aircraft, tail number N628TS.” Now does Elon have to give me the money and the jet? Of course not! There is no set of law and facts under which I can compel Elon Musk to hand over a big stack of cash and a really cool airplane. Now suppose I go to the most high-powered, expensive law firm in the country, hire the lawyer that everyone in the firm thinks is the best, and have that lawyer write the same order. Does that change anything in terms of Elon, the money, me, and the plane? No, and why should it? No matter how talented, a lawyer cannot conjure up legal relationships like rights and duties, without a basis in law and the facts on the ground to support those rights and duties.

Less silly, but an example all law students are familiar with: A mugger holds a gun to your head and says, “your money or your life.” Do you have an obligation to hand over your wallet? No. You have a very good prudential reason, but nothing with any normative force that lies in the neighborhood of a duty or an obligation. This, of course, is H.L.A. Hart’s famous critique of John Austin’s command-sanction model of law. Hart insists that, as a conceptual matter, the law cannot be identified merely with compulsion. Law cannot be simply the “gunman writ large.” As Hart argues, Austin’s theory must be rejected because it lacks the conceptual resources for understanding how it can be the case that the law creates obligations, as opposed to mimicking the gunman situation where the victim of the threat merely acquiesces in the threat of force.

Sound familiar? The apparatus of legal normativity – all of the concepts of right, duty, privilege, liability, liberty, and so on – enables the distinction between the exercise of brute power and the exercise of power that is authorized via procedures, institutions, and norms that are generally accepted in a political community as bearing on what individuals, entities, and the government are permitted to do. (If this sounds circular, I refer you to the voluminous scholarship on the rule of recognition and the internal point of view in Hart, which I love, but which we don’t need to deal with here. Scott Shapiro also gives a remarkably clear and understandable overview of the problem of legal normativity in the first part of his book Legality.)

This is not just a philosophical problem, however. The core of the criticism of all of these Trump EO’s is that they involve the assertion of brute power, not legally authorized power – that is, power based on legal sources, relevant facts, and the accepted traditions of legal reasoning that we refer to as professional craft. Without that underpinning of legality, the EO’s are empty of any obligation-creating force. Like the gunman, the government is creating prudential reasons to comply, but that’s not the same thing as a legal authorization to make the demand. As Ruth Marcus points out in her New Yorker article, the Paul Weiss deal is like a plea bargain – only one without an underlying offense: “[T]he firm had done nothing wrong, except in Trump’s mind. Even worse, it was a deal to undo a flagrantly unconstitutional order, one that punished the firm for taking legal positions hostile to Trump and for representing clients he did not like.”

On the assumption that the law is clear – and we’ll relax that assumption in a minute – a lawyer drafting an empty EO is in the position of the mugger with the gun. How does that fit with the rules of professional conduct? Looking through the rules, here are some that are close, but not exactly on point:

Rule 3.1

“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

At some point an appellate court in the controlling jurisdiction may squarely rule on the “basis in law” underlying the government’s defense of an order, but we’re a ways off from that. I’m not a procedure scholar by any means, but I always assumed that different judges in the same district may follow one another’s decisions as a matter of comity, and certainly if they find them persuasive, but are not bound to do so. (A quick check on Westlaw turned up U.S. v. Hirschhorn, 21 F.2d 758 (S.D.N.Y. 1927), which appears to still be good law, confirming that hunch.) Seventh Circuit Judge Frank Easterbrook has written, albeit not in a judicial opinion, that

something is frivolous only when (a) we've decided the very point, and recently, against the person reasserting it, or (b) 99 of 100 practicing lawyers would be 99% sure that the position is untenable, and the other 1% would be 60% sure it's untenable. Either one is a pretty stiff test.

Quoted in Sanford Levinson, “Frivolous Cases: Do Lawyers Really Know Anything at All?,” 24 Osgoode Hall L.J. 353, 375 (1986). In addition there is the language about a good faith argument for an extension, modification, or reversal of existing law, including the previous decision. Smart lawyers can usually come up with some distinction they can offer with a straight face (though not always – Judge Easterbrook in his judicial capacity recently teed off on a law firm for being unable to distinguish a solid wall of Seventh Circuit precedent in an argument it made on appeal). So, remarkably enough, the swift and stern reaction by Judge Howell to the Perkins EO did not necessarily render advocacy for the Paul Weiss EO frivolous.

I would contend, however, that even if defending the order in court – let’s say because you are a DOJ lawyer who drew the short straw and had to brief and argue the government’s position – it does not necessarily follow that a lawyer would be permitted either to advise the President that issuing a subsequent order directed at XYZ Law Firm is lawful, or to actually draft the order for the President to issue. I think there’s a much bigger gap than lawyers generally acknowledge between a position that’s barely non-sanctionable for Rule 11 purposes and a position that a lawyer may advise the client is consistent with the law. A lawyer can advise a legally sophisticated client, such as one with in-house legal counsel, that a piece of advice is “barely passing Rule 11” or something like that, but that’s not the same thing as making the representation, “the law permits X.” I think in some cases it’s tantamount to a lie to say “the alw permits X.” This sets up the next possible rule:

Rule 4.1(a)

“In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.”

Rudy Giuliani is one of several high-profile Trump-affiliated lawyers to suffer serious disciplinary consequences as a result of participating in “Stop the Steal” efforts around the 2020 presidential election. The Appellate Division of the New York Supreme Court – First Department, Giuliani’s admitting jurisdiction (we have a weird system of admission and regulation in New York), ordered Giuliani’s disbarment for, among other things, making false statements of material fact on several occasions. One lie was stating to the Pennsylvania State Legislature that thousands of dead people voted in the 2020 presidential election. My casebook co-author George Cohen has argued that Giuliani did more than just tell some lies – he engaged in a fraudulent scheme to benefit his client. Giuliani’s lies “were part of a scheme to corrupt legal institutions designed to resolve a factual question – which presidential candidate received the most votes – in an impartial way” (George M. Cohen, “The Discipline of Rudy Giuliani and the Real Fraud of the 2020 Election,” 73 Cath. U. L. Rev. 325 (2024)).

Could the same analysis be applied to any EO’s issued after the Perkins, Jenner, and Wilmer orders have been enjoined? Knowing how a federal judges is likely to respond to a nearly identical order, is the sequential targeting of law firms, and the explicit threat to take out any firm that has the temerity to represent a client whose position is considered contrary to the interests of the United States (as defined solely by the president), in effect a fraudulent scheme to corrupt legal institutions? George Cohen notes that the word “fraud” in the rules of professional conduct is generally defined with reference to the generally applicable substantive and procedure law of fraud (tort law, securities law, the law governing fraud on the tribunal, grounds for reopening a judgment under Fed. R. Civ. P. 60(b), and so on). I agree that’s true in some contexts, but I’m less sure here.

Rule 2.1

“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. . ..”

I made a big deal out of this rule when writing on the Torture Memos under the George W. Bush Administration, because it seems like the only way to give an rules-based account of the wrongfulness of advising the President that it was lawful to employ interrogation techniques amounting to torture. There was no court filing, so no violation of Rule 3.1 or Fed. R. Civ. P. 11. Milan Markovic has also written about Rule 2.1 in this context, and includes a very helpful recap of the investigation by the Justice Department’s Office of Professional Responsibility (OPR – I wrote about the office’s role here) of the memos written by John Yoo and Jay Bybee. The investigation concluded that Yoo had violated Rule 2.1 by deliberately slanting his analysis to make it sound like the President had authority to order torture. It interpreted Rule 2.1 to require a lawyer to advise the client if it was likely that a court would not sustain a position if challenged, and that the lawyer’s advice should candidly consider the strengths and weakness of the position and address likely counterarguments.

However, the Deputy Attorney General rejected the OPR Report on the grounds that the legal position taken in the Yoo/Bybee memo was not so indefensible that it violated the “candid legal advice” standard of Rule 2.1. The DAG’s position was that Rule 2.1 could not impose obligations that are stricter than those running to tribunals (e.g. Rules 3.1 and 3.3), and that Rule 2.1 must be interpreted in light of the client’s right to establish the objectives of the representation (good summary in Markovic’s article, pp. 134-35). Bringing the language of Rule 1.2(d) into the interpretation of Rule 2.1, the DAG concluded that Yoo was counseling or assisting the client to “determine the validity, scope, meaning, or application of the law.”

I think that’s nuts. The purpose of the Yoo/Bybee memo was not to help the administration determine whether it was lawful to employ various “enhanced interrogation techniques.” The Bush Administration had already decided that’s what it was going to do; it just wanted the legal cover in case it would be helpful in asserting an advice-of-counsel defense in a subsequent criminal proceeding. But I tend to see the Torture Memos episode as having foreclosed discipline under Rule 2.1 for providing slanted advice to the client.

In the end, I’m afraid, the rules don’t exactly match up with the jurisprudential critique I outline above, that the President’s authority to issue the EO’s against the law firms is a nullity, and thus the lawyers are pretending to exercise a power they don’t have. In a normal administration there would be norms and procedures to prevent this sort of thing from happening, as Bauer & Goldsmith have described. In an abnormal administration that is indifferent to norms and procedures that reinforce the rule of law, however, I don’t see a way for the rules of professional conduct to provide sufficient leverage against this type of abuse of power.

Case 2: It’s Just a Wee Bit Short of a Slam Dunk

One of my colleagues took issue with my previous analysis of the Perkins EO. He thought I was being credulous after having only read one side of the argument, and that the law is not as clear as I was making it sound. In short, it’s not a slam-dunk, although in all likelihood the order is unconstitutional. I’ll admit to not knowing as much administrative law as my colleague, and while I think I’m pretty good on the First Amendment as it applies to lawyers, I’ll also admit that’s a very murky area of law. And, as a litigator, I do agree that it’s important not to get seduced by one side’s argument without reading the other’s.

In addition, as soon as a legal position is anything less than a slam-dunk, the door is open to the excessive valorization of legal creativity. As another colleague of mine said, what about the Legal Defense Fund lawyers who devised the legal strategy to challenge segregated schools? The easy answer to that objection is to point out that the LDF strategy was a roadmap for litigation, in which good faith arguments for the modification or reversal of existing law were asserted in open court, with opposing counsel making the contrary arguments, and a judge to adjudicate among them. The more involved answer is that, at the time the LDF lawyers embarked on their litigation strategy, it was the case, as a matter of professional craft, that there was a good faith basis for the positions taken in litigation. I know, I know – these terms “good faith” and “craft” look empty or question-begging, and appealing to these concepts is unlikely to convince someone who believes the criticism of the Trump DOJ lawyers is purely political.

For example, in the National Review, legal commentator Andrew McCarthy confesses that it’s hard for him to defend Perkins Coie in this case, because Democrats are hypocrites. Why? Because we did the exact same thing in response to John Eastman’s involvement in the attempted January 6, 2021, coup. What? McCarthy explains:

Eastman is a former law school dean and constitutional law scholar whom I’ve known and considered a friend for many years. Yet I’ve been unsparing in deriding his theory that the vice president had the legal authority to either invalidate state-certified electoral votes or at least remand them to those states for further investigation (i.e., to create an opportunity for Republican-controlled legislatures to supplant the voters’ preference for Joe Biden with their own preference for Trump).

Here’s the thing, though: Eastman’s flyer was just that, a theory. Theorizing is what smart lawyers do: They are retained, often in unwinnable cases, to try to win, or at least get the best result for the client within the often vague boundaries of the law — with some creative lawyers taking this to the edgy point of manufacturing vagueness rather than merely exploiting it.

Eastman had a frivolous legal theory. In fact, it was so out there that he conceded he’d probably lose in a shutout at the Supreme Court. But we don’t indict lawyers for frivolous legal theories, so there was little risk of professional discipline for his floating one.

I’d like to think I’m not “Trump-deranged” or a “progressive ideologue who can’t spew enough bile,” but I do despise “what about?” or “both sides” arguments. Harvard Law School Professor Adrian Vermeule recently offered an even more explicit “both sides” explanation for refusing to sign the letter by Harvard Law faculty members expressing concern about the rule of law. Vermeule wrote (emphasis added):

The real issue is that the collective letter, although no doubt offered in good faith by its signatories, is shot through with selective ideological blindness. It is, I am sorry to say, a sectarian document cast as an appeal to high principle. Let us here ignore all other political controversies in recent years, and confine ourselves to those directly involving lawyers, judges, and legal representation: Where were the letter’s signatories when federal prosecutors took the unprecedented step of bringing dozens of criminal charges against a former president, who also happened to be the leading electoral opponent of the then-incumbent president? Where were the signatories when Jeff Clark, Rudy Giuliani, John Eastman, and other lawyers were disbarred or threatened with disbarment, and indeed prosecuted, for their representation of President Trump? Was this not a threat to the rule of law?

Again, I don’t think it’s “Trump deranged” or the result of “selective ideological blindness” to support the professional discipline of lawyers who violated the rules of professional conduct in their representation of Trump or in pursuit of his interests. But I do think Eastman and Clark are hard cases. Both of them can be understood as raising really out-there ideas for a legal pathway to Trump’s certification as the winner of the 2016 presidential election. Eastman himself admitted that the argument would go down in flames in the Supreme Court if it was litigated. But, but, but . . . is the glimmer of plausibility in his argument sufficient to avoid disbarment? I’m not sure.

I’ve written somewhat skeptically about the disciplinary proceedings against Eastman and Clark. But the theme of this post, and several other recent things I’ve written, is that it’s a mistake to try to shoehorn every ethical critique of lawyers into the rules of professional conduct. Yes, as a due process matter, if a lawyer is going to be sanctioned for unethical conduct, there needs to be a clear basis in the rules. That’s why I didn’t talk about the catch-all provisions of Rule 8.4(c) and (d) – I’ve said enough about them already. But we can raise hell about the unethical conduct of the lawyers who drafted these EO’s without expecting that professional discipline is sure to follow. This isn’t a magic bullet – there aren’t any of those – but keeping up the scrutiny on the ethical dysfunction (again, not “ethics in the sense of the rules” but “ethics in the sense of the standards we expect lawyers to adhere to) in this administration is one small thing we can do as lawyers and scholars who care about ethical lawyering.