What Career Prosecutors Can Do When Political Appointees Direct Cases

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Over the past year, more than six thousand Justice Department employees have left—some fired, many resigned, hundreds let go specifically because they worked on investigations the administration deemed illegitimate.

Federal prosecutors across the country are discovering that the legal protections they thought existed—civil service rules, whistleblower statutes, professional ethics requirements—offer less shelter than the law books suggest.

What the Law Says Should Happen

Career prosecutors can’t be let go at will. They’re protected by civil service rules that say you can only be fired for actual misconduct or poor performance. Federal law protects employees who refuse orders that would break the law. State bar rules apply to federal attorneys too (through a federal law), and they prohibit knowingly pursuing charges unsupported by evidence.

The Justice Department’s own manual makes it explicit: prosecutors must apply law evenhandedly, avoid political bias, maintain commitment to justice over conviction. These rules emerged directly from Watergate, when federal attorneys became instruments of presidential vengeance.

A career prosecutor who receives a directive to pursue charges she believes lack sufficient evidence should refuse. The law backs her up. Her state bar rules say she could lose her law license for participating. Federal employment law says she can’t be retaliated against for declining to follow an unlawful order. The DOJ’s professional responsibility standards align with all of it.

Here’s the thing: none of that prevents her from getting fired.

What Happens When You Refuse

Erik Siebert was the U.S. Attorney for the Eastern District of Virginia. Trump appointee. Republican. When his staff investigated James Comey and Letitia James and found insufficient evidence to charge them, he told his superiors the cases couldn’t proceed. The President publicly stated “I want him out.” Days later, Siebert was gone.

The legal protections provide ways to fix things after they go wrong, not ways to prevent them. They don’t prevent the retaliation from happening.

Available Options and Their Real Costs

A career prosecutor facing an improper directive has several paths. None of them good.

Request an ethics opinion. The Justice Department’s ethics division exists specifically for this purpose. Seeking an ethics opinion when the political appointees themselves are the problem is like asking your boss’s boss to rule on whether your boss is breaking the law. It creates a paper trail. It signals resistance. It marks you as potentially untrustworthy. And there’s no assurance the opinion you receive will be candid.

Refuse and force termination. Some have chosen this path. They simply decline to execute directives they believe violate professional standards, accept the consequences, and fight later through administrative appeals. You preserve your professional license and bar standing by demonstrating you refused to participate in misconduct. The disadvantage is you lose your job immediately. Even with whistleblower protections theoretically available, the federal office that investigates retaliation against whistleblowers takes months or years. The federal appeals board that handles disputes between employees and agencies has a long waiting list. You can ultimately prevail—win reinstatement, back pay, vindication—but not until long after you’ve lost income, professional position, and reputation.

Even if you win, you probably don’t want to go back. The agency that tried to fire you isn’t going to welcome you with open arms. Other employers may view you as someone who made an enemy of the administration. The emotional toll of fighting your own employer often makes reinstatement meaningless.

File a whistleblower disclosure. The Whistleblower Protection Act provides statutory protection for federal employees who disclose violations of law, rule, or regulation. Someone could file a formal complaint with the federal office that investigates retaliation against whistleblowers alleging that a directive constitutes abuse of authority. Once you make a protected disclosure, the government can’t legally retaliate. The office investigates and can seek remedies including reinstatement and disciplinary action.

But the timing is impossible. You must file the disclosure promptly—before you’re fired—or it becomes harder to prove retaliation. You must “reasonably believe” the conduct violates specific laws or regulations; saying it was political might not be enough. Experienced whistleblower advocates acknowledge the protections don’t work as well as they’re supposed to. The process is slow. You can’t afford to lose your job while waiting for it to complete. Agencies find ways to accomplish adverse personnel actions through different justifications harder to trace to retaliation.

File a state bar complaint. Career prosecutors are subject to state bar discipline. If someone believes another attorney has violated professional responsibility rules, she can file a grievance with the relevant state bar. This operates outside DOJ control. State bars have inherent authority to regulate attorney ethics. Disbarment would have serious consequences beyond job loss—it would prevent practicing law in any jurisdiction.

But state bars have shown reluctance to discipline high-ranking federal officials. Filing a bar complaint is seen as a serious escalation by employers—it may accelerate retaliation even if the retaliation is ultimately illegal.

Notify Congress. Federal law protects employees who make disclosures to congressional committees. Someone could notify relevant oversight committees of specific abuses. Congress has oversight authority. It can investigate, hold hearings, refuse to fund the agency, impeach—Congress removing the President from office. Congressional notification creates a record that may deter further abuse.

It provides virtually no immediate employment protection. You’ll still face termination. You’ll still have to pursue remedies through the same slow processes.

Why Protections Fail When Needed

The fundamental problem is that all these mechanisms provide ways to fix things after they go wrong, not ways to prevent them. They’re designed to make you whole eventually, not to keep you employed now.

Someone receives an improper directive on Monday. She refuses. She’s given until Friday to resign or be fired. She can file a whistleblower complaint, but that doesn’t stop the termination. She can request an ethics opinion, but her supervisor can remove her from the case immediately. She can notify Congress, but that doesn’t pay her mortgage.

She gets fired Friday. Now she files appeals. The Office of Special Counsel investigates—maybe. The Merit Systems Protection Board schedules a hearing—eventually. Months pass. Maybe a year. She’s unemployed this entire time. Her professional reputation is damaged. Other agencies are reluctant to hire someone who fought the Trump administration. Private firms worry she’s litigious.

Eighteen months later, an administrative law judge rules the termination was retaliatory and orders reinstatement. She’s vindicated. But she’s also been unemployed for eighteen months, burned through savings, maybe lost her house. And the agency she’s being reinstated to is the one that let her go. Her supervisors are the same people who tried to get rid of her. Her colleagues know she sued the department.

This is what victory looks like under the current system.

Historical Precedent: The Saturday Night Massacre

President Nixon ordered Attorney General Elliot Richardson to fire Special Prosecutor Archibald Cox. Richardson refused and quit. Deputy Attorney General William Ruckelshaus refused and quit. Solicitor General Robert Bork—the government’s top lawyer—followed the order and fired Cox.

Richardson and Ruckelshaus are celebrated for their principled stands. They’re also the ones who lost their jobs and didn’t get them back. Bork executed the improper order and remained in government.

Individual resistance is possible and honorable, but it requires willingness to sacrifice your position. Ultimately, someone can be found who will execute the improper directive if the cost of refusing is severe enough.

What stopped Nixon wasn’t Richardson and Ruckelshaus leaving. It was the firestorm of opposition, the congressional response, the threat of impeachment. The legal protections for federal prosecutors matter, but they exist within a larger political ecosystem where the ultimate check on executive power is political—Congress and the electorate.

How This Differs from Watergate

The current situation differs from Watergate in one significant way: the internal accountability mechanisms have been systematically dismantled before the abuses occurred, not after.

After Watergate, reforms established the Office of Professional Responsibility, strengthened the Public Integrity Section, created clearer guidelines for politically sensitive investigations. Those reforms assumed that internal DOJ mechanisms would provide checks on political appointees.

This time, those mechanisms were gutted first. Federal prosecutors facing improper directives can’t turn to internal resources for guidance because those resources have been rendered inoperative. They’re left with external protections—whistleblower statutes, appeals to the federal board that handles employee disputes, state bar complaints—that provide remedies only after harm and only after lengthy processes.

Federal Judges as a Check

One check has proven more immediate: federal judges. When cases appear politically motivated or done in a way that breaks the rules, judges can dismiss them.

Judge Dale Ho, overseeing the Adams prosecution, noted that career staff appeared to have followed appropriate guidelines when they initially sought to dismiss charges, and that the subsequent directive to continue prosecution raised questions about whether political considerations had supplanted prosecutorial judgment.

Judicial review provides a meaningful check, but it operates slowly and only after cases are filed. It doesn’t protect the people who were forced to bring the cases or who left rather than participate. It doesn’t restore their positions or compensate them for the professional damage they suffered.

The Choice Facing Prosecutors Now

Right now, somewhere in the Justice Department, a career prosecutor is receiving a directive she believes is improper. Maybe it’s to pursue charges against a political opponent. Maybe it’s to drop charges against a political ally. Maybe it’s to lie about evidence to a grand jury or court.

She’s reading the Justice Manual. She’s reviewing her state bar’s professional responsibility rules. She’s calculating whether she can afford to lose her job. She’s wondering if the whistleblower protections will work.

The law tells her she should refuse. Professional ethics demand it. Her bar license requires it. Federal employment statutes protect her for doing it.

But she knows what happened to Erik Siebert. She knows the Office of Professional Responsibility can’t help her. She knows that if she refuses, she’ll be fired, and the case will proceed anyway with a different prosecutor, and she’ll spend the next year or two fighting through administrative appeals while unemployed.

She also knows that if she complies, she risks bar discipline when the case is later challenged. She risks being the person whose name is on the indictment that a federal judge dismisses as improper.

This is the choice the current system offers: comply and risk professional consequences later, or refuse and accept consequences now.

Proposed Reforms

Several proposals have emerged to strengthen the ability of prosecutors to make decisions based on law, not politics. Make the head of the Office of Professional Responsibility a position removable only for cause. Require super-majority votes by staff before proceeding with investigations of political figures. Establish clearer statutory protections for the ability of prosecutors to make decisions based on law, not politics with judicial review.

Congress has proposed requiring explicit written policies governing White House communications with DOJ, strengthening whistleblower protections specifically for federal prosecutors, and providing for judicial review of charging decisions. All remain proposals.

The more fundamental reform is cultural. Legal scholar Jack Goldsmith argues that “professional standards and expectations can prevent abuse—they have for at least fifty years,” but questions whether they’ll continue to do so. The staff who have left or refused improper directives are themselves enforcing professional standards by showing that people can say no. The federal judges dismissing improper cases are enforcing standards through judicial review. The state bar associations considering disciplinary complaints are enforcing standards through professional regulation.

These enforcement mechanisms are fragile. They depend on individuals willing to sacrifice positions to maintain principles. They operate slowly and provide remedies only after harm. But they appear to be the primary safeguards available when internal DOJ controls have been dismantled.

What Career Lawyers Can Do

Federal prosecutors facing improper political directives can refuse. They can seek ethics opinions. They can file whistleblower complaints. They can notify Congress. They can report violations to state bars.

All of these are possible. And they’ll probably get fired anyway.

The legal protections exist. They’re real. But they provide ways to fix things after they go wrong, not ways to prevent them. They make people whole eventually—maybe—but not until after they’ve lost jobs, income, professional standing, and reputation.

The gap between what people should theoretically be able to do and what they can realistically do without destroying their positions is itself a problem for the rule of law. If staff cannot practically exercise the professional independence that law and ethics demand, the system doesn’t work the way the law says it should.

Some will refuse improper directives and accept the consequences. Their resistance matters—it shows that people can say no. But it requires willingness to sacrifice positions for principle. Ultimately, if the cost is high enough, someone else will be found to execute the directive.

What remains to be seen is whether the outside safeguards—judges throwing out bad cases, state bars investigating misconduct, staff resisting through resignations and appeals—will prove sufficient to protect the ability of prosecutors to make decisions based on law, not politics, or whether the formal legal protections will prove inadequate when facing sustained political pressure.

The people making these decisions right now are answering that question. Not in law review articles or congressional testimony, but in resignation letters and whistleblower complaints and cases that will be challenged in court months or years from now. They’re discovering in real time whether the protections the law promises exist when you need them.

So far, the answer appears to be: sort of. Eventually. If you can afford to wait.

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