The federal courts must determine whether the United States is being represented by conflict-free counsel.
Every United States Attorney in the Department of Justice takes an oath to faithfully perform their duties as well as the standard federal oath of office (5 U.S.C. §3331) to “support and defend the Constitution of the United States against all enemies, foreign and domestic; …”
Today, that oath is being tested.
January 6 insurrectionists are seeking money damages from the United States under the Federal Tort Claims Act.
The defendant in those actions is the United States.
The Department of Justice is responsible for defending the United States.
But the same administration that pardoned the January 6 insurrectionists now directly controls the Department of Justice attorneys responsible for defending the United States against their FTCA claims.
That presents a conflict that the American legal profession cannot ignore.
The issue is whether attorneys subject to the direct control of the administration that pardoned the claimants can provide the independent representation to which the United States is entitled.
It will reach the court only if lawyers bring it there.
Lawyers have a responsibility extending beyond clients, employers, political parties, and personal advancement.
This is their opportunity to acknowledge that responsibility and take action that only lawyers can take.
The Department of Justice ordinarily represents the United States in civil litigation. Under the supervision of the Attorney General, Department of Justice attorneys routinely defend the United States in actions brought under the Federal Tort Claims Act.
Assistant United States Attorneys owe their professional loyalty to the United States and to the fair administration of justice, not the President or the administration temporarily exercising executive power.
The January 6 FTCA claims create an extraordinary circumstance.
The President granted clemency to people whose conduct on January 6 resulted in federal prosecution and in many cases plea bargains or convictions after a trial. Some of those same people now seek damages from the United States.
Their claims must be defended by a Department of Justice controlled by the administration that granted their clemency.
The conflict is institutional.
It does not depend upon the motives or integrity of any individual Department of Justice attorney.
It arises because the administration that pardoned the claimants now controls the lawyers defending the United States against those same claimants.
The Department of Justice cannot be the final judge of whether it can independently represent the United States.
That question belongs to the federal courts.
Every significant development in American law began because a lawyer presented a question that no court had yet answered.
The federal courts must determine whether the United States is receiving the loyal, independent, and conflict-free representation required by the American adversary system.
That determination belongs to the judiciary, not to the institution whose independence has been questioned.
An institution controlled by an interested administration cannot be the final judge of whether its representation is sufficiently independent of that administration.
The legal profession cannot wait for Congress, the Department of Justice, or the administration to correct the problem.
Lawyers throughout the American bar should present the issue to the courts.
If they do not, no one else will.
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Challenge the Conflict. Protect the United States.
July 17, 2026 | Litigation
The federal courts must determine whether the United States is being represented by conflict-free counsel.
Every United States Attorney in the Department of Justice takes an oath to faithfully perform their duties as well as the standard federal oath of office (5 U.S.C. §3331) to “support and defend the Constitution of the United States against all enemies, foreign and domestic; …”
Today, that oath is being tested.
January 6 insurrectionists are seeking money damages from the United States under the Federal Tort Claims Act.
The defendant in those actions is the United States.
The Department of Justice is responsible for defending the United States.
But the same administration that pardoned the January 6 insurrectionists now directly controls the Department of Justice attorneys responsible for defending the United States against their FTCA claims.
That presents a conflict that the American legal profession cannot ignore.
The issue is whether attorneys subject to the direct control of the administration that pardoned the claimants can provide the independent representation to which the United States is entitled.
It will reach the court only if lawyers bring it there.
Lawyers have a responsibility extending beyond clients, employers, political parties, and personal advancement.
This is their opportunity to acknowledge that responsibility and take action that only lawyers can take.
The Department of Justice ordinarily represents the United States in civil litigation. Under the supervision of the Attorney General, Department of Justice attorneys routinely defend the United States in actions brought under the Federal Tort Claims Act.
Assistant United States Attorneys owe their professional loyalty to the United States and to the fair administration of justice, not the President or the administration temporarily exercising executive power.
The January 6 FTCA claims create an extraordinary circumstance.
The President granted clemency to people whose conduct on January 6 resulted in federal prosecution and in many cases plea bargains or convictions after a trial. Some of those same people now seek damages from the United States.
Their claims must be defended by a Department of Justice controlled by the administration that granted their clemency.
The conflict is institutional.
It does not depend upon the motives or integrity of any individual Department of Justice attorney.
It arises because the administration that pardoned the claimants now controls the lawyers defending the United States against those same claimants.
The Department of Justice cannot be the final judge of whether it can independently represent the United States.
That question belongs to the federal courts.
Every significant development in American law began because a lawyer presented a question that no court had yet answered.
The federal courts must determine whether the United States is receiving the loyal, independent, and conflict-free representation required by the American adversary system.
That determination belongs to the judiciary, not to the institution whose independence has been questioned.
An institution controlled by an interested administration cannot be the final judge of whether its representation is sufficiently independent of that administration.
The legal profession cannot wait for Congress, the Department of Justice, or the administration to correct the problem.
Lawyers throughout the American bar should present the issue to the courts.
If they do not, no one else will.