In the labyrinth of American law, the first wrong turn is often grammatical. Swap a singular for a plural—the President for the People—and a whole architecture shifts by degrees until courthouses feel like vestibules to a single man's will. What opens as error hardens into habit; what begins as advocacy calcifies into allegiance. This essay traces that drift, from ethical text to courtroom practice, from centuries-old doctrine to a month of rulings that read like dispatches from a captured ministry. It asks a simple thing that has somehow become complicated: Do government lawyers represent a person, or do they represent a nation?
The American answer is neither occult nor new. In 1935 the Supreme Court said aloud what every decent prosecutor knows in the marrow: The United States Attorney "is the representative not of an ordinary party to a controversy, but of a sovereignty," and her interest "is not that it shall win a case, but that justice shall be done." That is the oath distilled into a sentence; it is also a boundary marker, a warning against the intoxication of office and the easy romance of partisan combat. The line still glows on the page. The difficulty is not that we forgot the words; it is that we built corridors where the light can't reach.
I. First principles, briefly
A republic speaks through rules that tame proximity to power. Federal ethics law and the Justice Department's own regulations prohibit participation in investigations when an employee has a personal or political relationship with someone "substantially involved" in the matter, or whose fortunes will be "directly affected" by the outcome. These are not hall‐monitor niceties; they are the scaffolding that keeps sovereign power from sliding down into the service entrance of a leader's circle.
The same manual reminds Department lawyers that public service is a public trust. DOJ's internal chapters on standards of conduct and on communications with Congress and the White House exist to stop even the appearance of political interference in specific cases. The wall is old and purposeful: policy conversations may travel; prosecutorial decisions do not. That distinction is how a constitutional republic remembers that law is a public good, not a private instrument.
The Supreme Court's ethics-through-doctrine is not coy about duty. In Berger v. United States and Young v. United States ex rel. Vuitton, the Court repeats the refrain that prosecutors are "ministers of justice," whose job is to seek fairness, not trophies. Conflicts disfigure that vocation; so does the theatrical zeal that mistakes partisanship for vigor. These cases are an antidote to hero worship—and a lens to read the present moment, where the temptations are flamboyant and the guardrails, tested.
II. The new habit of representing a man
In the past year, judges began to speak in a register that is unusual for federal court: not just the language of error, but the vocabulary of institutional violation. The prosecution of former FBI Director James Comey became a case study in how a department can look less like a steward of the public interest and more like a shop for bespoke grievances. A magistrate judge, examining the record, described a "disturbing pattern of profound investigative missteps"—misstatements of law to a grand jury, irregularities in the transcripts, the kind of procedural shortcuts that are not merely sloppy but corrosive. He ordered the government to turn over the grand-jury materials. In dignified prose, he pointed at something indecent.
The thread did not stop at adjectives. Reporting across outlets noted that the newly appointed U.S. attorney leading the case had little criminal experience; defense filings challenged the legality of her appointment and the haste with which an indictment appeared on the eve of a statute of limitations. Some coverage added a detail that lands like a thud: the full grand jury may not have seen the final indictment. Whether those details survive appeal or not, the portrait is unmistakable—a public office tilted toward the personalized demand of a single politician. That is not a neutral tragedy of competence; that is category error.
If the Comey matter reads like an unmasking, other cases read like footnotes growing teeth. Judges have sanctioned attorneys for frivolous suits or arguments untethered to fact—the Florida order imposing nearly a million dollars in fees for a conspiracy-laden complaint, or New York sanctions for "frivolous" claims recycled after warning. These are less operatic than the headlines, but together they map a pattern: a set of lawyers litigating as if the rules were stage props and losing not just cases but the court's patience.
Conflicts, the quiet killers of legitimacy, are the drumbeat underneath. The special counsel flagged how a defense lawyer representing a Trump aide also represented witnesses with adverse interests; the court convened conflict hearings because the Sixth Amendment is not a playground. Even beyond public prosecutions, the former president's own counsel was compelled to testify under the crime-fraud exception—an extraordinary remedy that pierces the privilege where legal services abet misconduct. It is hard to square those facts with a theory that what we're seeing is just normal hardball. It is not.
III. The Maxwell detour—and why it matters even if it is "just" optics
In a separate channel of the same river, allegations surfaced that the Deputy Attorney General—formerly the president's private lawyer—met with Ghislaine Maxwell for what sources described as a "proffer," just weeks before the Bureau of Prisons moved her to a lighter facility. House oversight letters asked if the meeting, the transfer, and a swirl of reported "perks" amounted to political favoritism dressed as penology. The Department, unusually, released a transcript of an interview but insisted the decisions were regular. Regularity, like justice, does not announce itself; it proves itself. Even so, the mere need to litigate the appearance of impropriety is a signal failure. DOJ's conflict regulation exists so the public never has to take on faith that proximity to power does not buy process.
The "perks" stories—service dogs, custom meals, easy access—tilt between whistleblower claims, denials, and tabloid sneer. Yet the controversy proved the point: once senior DOJ leadership arrives by way of personal advocacy for the president, every discretionary act is suspect, every kindness an implied quid, every transfer a rumor. When the second-highest law-enforcement official is a former private defender of the person who benefits from clemency, the ethics rule is not a technicality; it is the only thing standing between a republic and a client list.
It is possible—indeed, charitable—to say that much of this is atmospherics and that atmospherics are not law. But confidence is a constitutional resource. DOJ itself teaches its lawyers to avoid even the appearance of political influence in case-specific decisions; the White House contacts policy is built on that prophylaxis. When communication about a live matter crosses from policy to prosecution, the rule of law loses altitude. Ethics lives in the space between what is permitted and what is wise.
IV. The courtroom keeps a ledger
Stripped of the noise, judges have begun to say the quiet part out loud: when government lawyers behave like private agents, courts must respond as if the client himself were leaning over counsel table. That is how you get holdings about "government misconduct" in a high-profile case; that is how you get forensic remedies—turn over the grand-jury record, restart a hearing, appoint counsel for conflicted clients—that read like emergency maintenance manuals. These aren't "gotchas." They are how an institution ventilates its rooms when someone lights a match indoors.
There is another ledger, less dramatic and more radioactive: the crime-fraud exception orders that forced a former president's lawyer to testify and hand over notes. Those rulings explain, in dry but devastating prose, that privilege does not cloak acts used to further a crime. The image of a lawyer hauled back into the grand jury is not a morality play; it is the mechanics of a system that will not allow the profession—our guild—to become the perfect instrument of impunity.
V. Post-truth temptations, institutional costs
Crowds do strange things to reason. Newsrooms, frightened of accusations of bias, can drift into a reflex that scholars call false balance: a ritual pairing of unequals that forces the audience to weigh smoke against steel as if both were matter. In that environment, an attorney who performs certainty on television can launder weak claims with the tone of inevitability, and a department that should resist political contamination instead chases it in the name of "public confidence." But the cure there is not bothsides symmetry; it is standards. Facts do not become partisan because one side is unbothered by their existence.
The media ecosystem makes all of this worse. Local news deserts spread; independent outlets shutter; press-freedom rankings tick down as harassment, economics, and distrust pinch the flow of verified information. In the vacuum, weaponized narratives thrive: allegations are enough, denials are proof, inquiries are conviction, and any refutation is "spin." A justice system that already operates in slow, careful sentences is not built to survive in a culture addicted to dopamine and spectacle. Yet it must—because a constitutional order does not get a second bloodstream.
VI. The ethical map for getting home
What, then, to do when judges begin to describe government lawyering as sloppy, untruthful, or conflicted? The answer is not a single dramatic reform; it is a series of old-fashioned, almost boring commitments that together amount to a kind of institutional sobriety.
1) Enforce conflicts rules with paper, not vibes. Written, public recusal decisions under 28 C.F.R. § 45.2 should be the norm when senior DOJ officials have personal or political ties to subjects, targets, or beneficiaries. Delegations and waivers should carry reasons, timetables, and named stand-ins. The standard here is not "trust us"; it is "show us."
2) Re-erect the wall with the White House. DOJ's 1-8.000 chapter and the long-standing contacts policies are not decorative. Formal channels, designated liaisons, and logs of communications for case-specific matters force grown-ups to act like grown-ups. In a season when pressure is the point, procedure is salvation.
3) Rebuild competence as a public good. No one should be learning grand-jury law on a live grenade. The Comey matter shows what happens when speed, inexperience, and political demand collide. US attorneys wield discretionary power that can maim institutions if misused; their appointments should be screened not only for ideology but for prosecutorial craft. Courts have begun to say this in the only way courts can: by ordering remedies that are humiliating to the government. That, too, is a lesson.
4) Strengthen independence with norms that survive the worst president. The point of ethics architecture is to withstand an executive who treats law like weather. That is why the best articulation of prosecutorial role remains Berger and Young: if the client is the public, then the lawyer's posture is skepticism toward power—including her own. The republic pays dearly when government lawyers forget who sent them.
5) Make appearances matter again. The Maxwell detour—meeting optics, transfer optics, "perks" optics—illustrates how proximity warps trust. Even where the facts are contested, the damage is real. DOJ should adopt an automatic external review mechanism for any carceral or clemency decision that might reasonably appear to intersect with the president's private interests or personal risk. Transparency is not weakness; it is how adults tell a country they remember who holds the deed.
6) Equip judges to remedy conflicts earlier. Garcia-style hearings in complex, multi-defendant cases should be scheduled as soon as overlapping representation is visible, not after plea postures harden. Courts can insist on conflict counsel for witnesses at risk, and on the record, while the narrative is still molten. The law already allows this; the times demand it.
7) Resist the seductions of spectacle. When privilege is pierced under the crime-fraud exception, the message to the bar is bracing but necessary: our job is not to be the client's shield against law; it is to be the law's steward for the client. That requires an internal culture that treats grandstanding as malpractice, not marketing.
VII. The parable of the corridor
Imagine a corridor in a government building—blank walls, fluorescent light, carpet worn by good shoes. At one end, a door bearing the seal of the United States; at the other, a private office with a name on the frosted glass. The corridor is ten steps long, and most days the air is still. But in certain seasons someone props the private door open and shouts down the hall, inviting the seal to come closer. The temptation is not to sprint; it is simply to take a step, and then another, until an entire department believes it can move between those doors without switching clients.
The story ends one of two ways. In the good ending, a judge's order—dry, relentless, unglamorous—orders a turn-around: produce the record, correct the error, recuse the conflicted, stop pretending an indictment can be finished in the shadows. In the bad ending, the corridor becomes a habit and the habit becomes a definition. If that happens, the country will have to relearn an old grammar: that law is not a synonym for force, that "justice" is not a team, and that public lawyers speak for the many or they speak for no one at all.
VIII. Coda: on representing a nation
There is a sentence I wish every government lawyer would copy by hand before touching a file: the client is not the President. It is a sentence with consequences. It is why the Department must publish conflicts waivers, why the White House cannot whisper to prosecutors about who deserves charges, why even the appearance of tilting a prison transfer toward a friend of the palace is intolerable. It is why a judge who uses the word misconduct is not editorializing; he is reporting a weather event in a sealed room.
The more politicians insist that loyalty is a virtue, the more the profession must insist that loyalty is a vice when misplaced. The courtroom has noticed. The rulings, sanctions, conflict hearings, and privilege-piercing orders are not a fever dream. They are the immune system working. The danger is not that judges say too much; it is that lawyers have forced them to say what should never have needed saying.
We do not need to romanticize the past to defend the present tense. The architecture is still there: conflict rules that forbid the personal from invading the public; communications policies that wall off prosecutions from palatial whim; cases that tell prosecutors to strike hard blows but not foul ones. Those are not metaphors. They are instruments. Pick them up.
And remember the first turn: who the client is. If the answer is a man, everything else follows. If the answer is the nation—messy, plural, infuriating, yours—then the corridor stays a corridor, the seal stays on the door, and the law remains something more than a flattering word for power.
References & Sources
- Berger v. United States, 295 U.S. 78 (1935) (prosecutor's duty is to seek justice, not wins)
- Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987) (prosecutor as "minister of justice"; conflicts)
- 28 C.F.R. § 45.2 (DOJ conflicts regulation: personal/political relationships), and DOJ ethics guidance
- DOJ Justice Manual, 1-8.000 (Congressional & White House Relations)—contact restrictions for case-specific matters
- DOJ/AG contacts policies and historical memos (2006, 2009), and analytical overviews
- Comey prosecution: judicial findings of "profound investigative missteps" and potential misconduct; orders to release grand-jury materials
- Reports on the experience/appointment issues surrounding the Trump-picked U.S. attorney
- Sanctions against Trump-aligned counsel: Middlebrooks sanctions order (~$937k) and New York sanctions for frivolous arguments
- Conflicts in Mar-a-Lago documents case: government filings on counsel conflicts and Garcia hearings; coverage of witness-counsel overlaps
- Crime-fraud exception piercing attorney-client privilege for Evan Corcoran; unsealed materials and analysis
- Maxwell controversy: reports and official materials on alleged perks, transfer to FPC Bryan, congressional letters, and DOJ transcript release; competing accounts regarding dog programs/perks
- False balance / bothsidesism research and primers
- Press-freedom and local-news collapse: Medill State of Local News (2025) and RSF Press Freedom Index (2025)
- Amicus with Dahlia Lithwick, episode featuring Mimi Rocah on prosecutorial malpractice (context for the professional critique)