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DOJ-001 — Seven-Year Cooling-Off Rule for Senior Justice Department Eligibility

Statutory Analogue

The proposal uses the office-specific cooling-off structure found in 10 U.S.C. § 113(a)(2), which restricts appointment of certain recently retired commissioned officers as Secretary of Defense. That provision is a legislative analogue and historical practice, not a controlling judicial holding on the constitutionality of the proposed Attorney General qualification.

Proposed Amendment

Section 503 of title 28, United States Code, is amended by designating the existing text as subsection (a) and adding at the end the following:

(b)(1) A person may not be appointed to, or serve in, the office of Attorney General during the seven-year period following the termination of covered legal representation of the sitting President.

(2) In this subsection, the term “covered legal representation” means personal legal representation, advice, or advocacy provided directly to—

(A) the President;

(B) the President-elect; or

(C) a candidate for President who subsequently becomes the sitting President,

in connection with a criminal investigation or proceeding, civil-enforcement matter, impeachment or removal proceeding, election or campaign matter, personal financial or business interest, claim of personal immunity, or any other matter in which the represented individual’s interests were distinct from, or could reasonably diverge from, the interests of the United States.

(3) Covered legal representation does not include legal service performed solely in an official capacity on behalf of the United States, an agency of the United States, or the Executive Office of the President.

(4) Not later than 5 days after the President transmits a nomination for Attorney General to the Senate, the nominee shall disclose to the Committee on the Judiciary of the Senate and to the Director of the Office of Government Ethics all facts reasonably necessary to determine compliance with this subsection. The nominee shall update the disclosure not later than the date of the first hearing to consider the nomination if additional responsive information becomes known.

(5) Before final committee action on the nomination, the Director of the Office of Government Ethics shall review the disclosure submitted under paragraph (4), consult as appropriate with the Department of Justice Designated Agency Ethics Official, and transmit to the Committee on the Judiciary of the Senate a written determination identifying whether the disclosed facts indicate compliance with this subsection. The determination shall not bind the Senate in exercising its advice-and-consent function and shall not preclude judicial review under paragraph (6).

(6)(A) An individual whose eligibility or continued service is governed by this subsection, or a person subject to a criminal prosecution, civil enforcement action, subpoena, compulsory process, or other Department of Justice action personally authorized, directed, supervised, or substantially participated in by an officer alleged to be serving in violation of this subsection, may bring a civil action in the United States District Court for the District of Columbia for declaratory or prospective injunctive relief concerning compliance with this subsection.

(B) An action under this paragraph shall receive expedited consideration.

(C) No indictment, conviction, judgment, subpoena, civil enforcement action, settlement, order, agency action, or other Department of Justice act shall be dismissed, vacated, suppressed, or otherwise invalidated solely because of a violation of this subsection unless another provision of law independently authorizes that remedy and the party seeking relief demonstrates particularized prejudice.

(7) If any provision of this subsection, or its application to any person or circumstance, is held invalid, the remainder of the subsection and its application to other persons or circumstances shall not be affected.

Section 504 of title 28, United States Code, is amended by designating the existing text as subsection (a) and adding at the end the following:

(b) The eligibility restriction, disclosure requirement, ethics-review provision, expedited-review provision, and severability rule set forth in section 503(b) apply in the same manner to appointment to, or service in, the office of Deputy Attorney General.

Section 504a of title 28, United States Code, is amended by adding at the end the following:

The eligibility restriction, disclosure requirement, ethics-review provision, expedited-review provision, and severability rule set forth in section 503(b) apply in the same manner to appointment to, or service in, the office of Associate Attorney General.

Budgetary Impact Statement

Administrative workload is possible through nominee disclosure, OGE review, DOJ ethics consultation, Senate review, and occasional expedited judicial review; no new appropriation is specified and no dollar estimate is assigned.

Note: Preliminary ARRP assessment only; not a CBO, OMB, agency, or legislative-counsel score.

Drafting Notes

  • The seven-year period tracks the general lower-grade cooling-off period currently used in 10 U.S.C. § 113(a)(2)(A).
  • The rule excludes official government representation so that service as White House Counsel, agency counsel, or another government lawyer is not automatically disqualifying merely because the lawyer represented the institutional presidency or the United States.
  • The phrase “could reasonably diverge” is intended to capture personal or political representation presenting a foreseeable institutional conflict while avoiding a prohibition covering every legal service associated with a President.
  • Extension to the Deputy Attorney General uses the existing office-specific statutory hook in 28 U.S.C. § 504 and corrects the earlier remedy mismatch between a Deputy Attorney General manifestation and Attorney General-only bill text.
  • Extension to the Associate Attorney General uses 28 U.S.C. § 504a and tracks the succession role of that office under 28 U.S.C. § 508.
  • The five-day disclosure timing tracks the nominee financial-disclosure timing Congress already uses in 5 U.S.C. § 13103(b).
  • The Office of Government Ethics review role uses existing OGE conflict-review and corrective-action authority in 5 U.S.C. § 13122 while preserving the Senate's independent advice-and-consent role.
  • The judicial-review provision is narrowed to the covered individual and people directly subject to DOJ action substantially involving the allegedly ineligible official. This is intended to improve Article III standing and avoid generalized taxpayer, voter, or legislator standing theories.
  • The remedial-limit provision is intended to reduce de facto-officer disruption by preventing automatic invalidation of DOJ actions absent an independent remedial basis and particularized prejudice.
  • No individual eligibility waiver is included. Congress could enact one by later legislation if an extraordinary case justified it.
  • Further refinement should address whether the rule should extend to other specified senior DOJ offices.

Authority Notes

28 U.S.C. § 503 creates the office of Attorney General, prescribes presidential appointment with Senate advice and consent, and designates the Attorney General as head of the Department of Justice.

28 U.S.C. § 504 authorizes the President to appoint a Deputy Attorney General by and with the advice and consent of the Senate.

28 U.S.C. § 504a authorizes the President to appoint an Associate Attorney General by and with the advice and consent of the Senate.

28 U.S.C. § 508 places the Deputy Attorney General and Associate Attorney General in the statutory order for exercising Attorney General duties during a vacancy, absence, or disability.

10 U.S.C. § 113(a)(2) imposes a seven-year or ten-year cooling-off period, depending on grade, for certain former regular commissioned officers before appointment as Secretary of Defense.

5 U.S.C. § 13103(b) requires Senate-confirmation nominees to file financial disclosure reports within five days after nomination transmittal and update them before the first hearing.

5 U.S.C. § 13122 gives the Director of the Office of Government Ethics executive-branch conflict-prevention, disclosure-review, investigation, corrective-action, and advisory responsibilities.