HR-8861-119
Referred to the House Committee on the Judiciary.
Sponsored by Mary Scanlon (D-PA)
What it does
This bill would amend federal law (18 U.S.C. § 207) to prohibit former Department of Justice attorneys from representing, aiding, or assisting a business entity in any federal prosecution — or in a deferred prosecution agreement — that the attorney personally and substantially participated in while at DOJ. The restriction would last for one year after the attorney leaves federal service. Violations would be punishable under existing federal conflict-of-interest penalty provisions (18 U.S.C. § 216).
Who benefits
The general public and defendants in federal criminal cases, who would have greater assurance that DOJ attorneys cannot immediately "switch sides" on cases they personally handled. Business entities that are not currently under federal prosecution, who benefit from a more impartial DOJ. Smaller or less well-resourced law firms that compete with large firms for former DOJ talent. Public trust in the federal justice system broadly.
Who is hurt
Former DOJ attorneys whose post-government employment options would be narrowed for one year, particularly those who handled major corporate prosecutions. Large law firms and white-collar defense practices that recruit former federal prosecutors specifically for their case knowledge. Business entities under federal investigation who may prefer to hire the attorney most familiar with their case. Law school graduates who may find DOJ positions less attractive if post-government career flexibility is reduced.
Supporters argue
Supporters argue that when a DOJ attorney personally directs a prosecution or negotiates a deferred prosecution agreement and then immediately joins the defense side of that same matter, it undermines the integrity of the federal justice system and creates an unfair advantage for well-resourced corporations. They contend that existing revolving-door restrictions under 18 U.S.C. § 207 already prohibit similar conduct for other federal officials, and that extending these rules to DOJ attorneys on their own cases is a narrow, targeted fix that closes a specific gap — not a broad career restriction.
Opponents argue
Opponents argue that the bill restricts the right of business entities to choose their own legal counsel — a Sixth Amendment-adjacent concern — and may deprive defendants of the most qualified representation available. They contend that existing professional conduct rules, including bar association conflict-of-interest standards and DOJ's own ethics regulations, already address this conduct, making a new criminal statute redundant and potentially chilling legitimate post-government legal careers in ways that could reduce the quality of attorneys willing to serve in DOJ roles.
Constitutional context
The bill implicates the Fifth Amendment's Due Process Clause to the extent it restricts a former government employee's ability to practice law, though courts have generally upheld post-employment restrictions on former federal officials as rationally related to preventing conflicts of interest. No active Supreme Court tension area directly governs this provision, as existing revolving-door statutes under 18 U.S.C. § 207 have been upheld without significant constitutional challenge.
Checks and balances
The Executive Branch (DOJ) would gain a structural protection against internal conflicts of interest; enforcement authority rests with DOJ itself and federal courts under 18 U.S.C. § 216, and the Judiciary Committee retains oversight of the statute's scope.
Historical precedent
The existing post-employment restrictions in 18 U.S.C. § 207, enacted as part of the Ethics in Government Act of 1978 and strengthened by the Lobbying Disclosure Act of 1995, established the legal framework this bill would extend to DOJ attorneys on their own prosecutions.