The Legal Profession in the Executive Branch

The Trump administration is reshaping the roles of the U.S. authorized occupation and the civil service to make use of them as a device to help the President’s political pursuits. This impacts an understudied and politically vital group of bureaucrats: authorities legal professionals. Based on a former Division of Justice lawyer, who turned a whistleblower in June 2025, they’re being instructed to lie in courtroom and ignore judicial orders. Authorities legal professionals play a crucial gatekeeper position in establishing authorized ideas that may each allow and hinder the systematic weakening of democratic establishments. It’s subsequently price looking at institutional preparations that may decide whether or not they tilt in a single path or the opposite. The case of Brazil has plenty of necessary classes to supply: it reveals that whereas conventional authorized protections supplied by bureaucratic organizations could also be efficient in stopping authorities legal professionals from being co-opted by political leaders who comply with the quick observe to autocracy, these protections won’t be as efficient in stopping the regular and silent erosion of democratic establishments.

Authorities legal professionals below Bolsonaro

The developments round authorities legal professionals presently happening within the U.S. discover a historic parallel in Brazil; an instance that may present helpful insights for fascinated by institutional guardrails for the Govt Department. Though U.S. students, corresponding to Scott Cummings, have studied how authorities legal professionals stood as much as Trump’s effort to overturn the 2020 election outcomes, little is thought about how the Bolsonaro administration tried to make use of authorities legal professionals as a device to create an phantasm of legality to erode Brazil’s democracy and, in the end, try a coup to stay in energy after a 2022 election defeat.

Bolsonaro’s autocratic goals turned evident throughout the first months of his presidency. In 2020, his administration proposed a constitutional modification aimed toward ending civil service tenure protections in Brazil. This proposal, nonetheless, didn’t garner sufficient help to move in Congress. Given his lack of majoritarian help from the Legislative Department, Bolsonaro – amongst different issues – tried to seize authorities legal professionals working throughout the Govt.

On the federal stage in Brazil, authorities legal professionals are overseen by the Federal Lawyer Normal, who’s appointed on the President’s discretion. She or he leads the Federal Lawyer Normal’s Workplace (AGU), whose creation marked a milestone within the transition to the present democratic regime following Brazil’s 1964-1985 navy dictatorship.

The AGU was constructed on classes from authoritarian regimes that dominated the nation within the twentieth century. For the primary time, all federal authorities legal professionals could be gathered in a bureaucratic establishment with merit-based hiring, tenure protections, structured profession paths, and authorized proceduralism, aimed toward standardizing the interpretation of guidelines contained in the Govt Department. Like different elites within the Brazilian civil service, they’re well-paid, chosen by means of aggressive open-admission exams, and have due course of rights that forestall arbitrary dismissals. These institutional options have been designed to boost the meritocratic professionalization and to deal with the patronage between politicians and bureaucrats that has traditionally influenced the Brazilian state.

Though the AGU doesn’t have prosecutorial powers, it might probably signify the federal authorities in courtroom and decide the legality of all guidelines issued by companies and the President. Which means each rulemaking course of throughout the Govt Department requires a authorized opinion from a authorities lawyer analyzing authorized and procedural compliance. Authorities legal professionals, thus, have a sure diploma of autonomy from politicians and play a key position in creating, implementing, and deciphering legal guidelines throughout the federal authorities.

The instrumentalization of the AGU

All three Lawyer Generals who served throughout Bolsonaro’s time period initially didn’t look like loyalists to the President. As a substitute, their credentials got here from long-serving members of AGU’s workers. However Bolsonaro nonetheless managed to, a minimum of partly, instrumentalize the AGU to weaken Brazil’s democracy, which turned evident in two key developments: the deregulation of environmental protections and the position carried out by Bolsonaro’s Lawyer Normal in instances introduced earlier than the Supreme Courtroom.

In a 2020 ministerial assembly, Brazilian Atmosphere Minister Ricardo Salles – a lawyer with earlier authorities expertise on the state stage – known as on the federal authorities to reap the benefits of the media give attention to the coronavirus pandemic to additional decontrol environmental insurance policies. He aimed to take action by revoking and dismantling guidelines that didn’t require prior congressional approval. For this objective, the Minister argued that the Lawyer Normal ought to put together authorized “artillery” to help deregulation orders by issuing authorized memos and defending the brand new guidelines that will be challenged in courtroom. As Katherine Bersch and Gabriela Lotta have proven, the Bolsonaro administration applied authorized modifications to non-statutory guidelines that didn’t require congressional approval. Thereby, they managed to dismantle environmental companies and weaken environmental regulatory guidelines. Though the precise position of presidency legal professionals on this case stays unclear, these authorized modifications wouldn’t have been issued by the Govt Department and not using a authorized opinion from an AGU lawyer, which demonstrates the success of Minister Salles’s initiative. It additionally highlights necessary gaps for future analysis, which may make clear the precise position of presidency legal professionals on this case and analyze the authorized interpretation they used to justify the deregulation guidelines.

Concerning the second case, analysis carried out by Eloísa Almeida and Luiza Ferraro discovered that the AGU contributed to the obvious legality of authoritarian acts, as indicated by an evaluation of 290 Supreme Courtroom instances involving judicial assessment of guidelines issued by the Govt Department through the Bolsonaro administration. Though the AGU doesn’t have the responsibility to defend the lawfulness of the rules challenged earlier than the Supreme Courtroom, the Lawyer Normal carried out not solely a broad protection of all Govt Department orders but additionally a really private protection of the President. For instance, the AGU supported Bolsonaro’s insurance policies on the COVID-19 pandemic and argued in favor of distributing hydroxychloroquine to customers of the Nationwide Well being System who have been contaminated by the then-new coronavirus, regardless of the shortage of scientific proof proving the medication’s effectiveness.

Authorities legal professionals as a constitutional guardrail

Then again, the AGU was a major barrier to Bolsonaro’s autocratic challenge when he sought to comply with the fast-track option to autocratization by means of a navy coup to overturn the 2022 election outcomes. One in all Bolsonaro’s closest aides texted the Lawyer Normal asking for his opinion on a heterodox and minority interpretation of the Brazilian Structure, which claims that the President can unilaterally name the Armed Forces to intervene politically to resolve conflicts between the branches of the Brazilian authorities. The Lawyer Normal replied that this difficulty shouldn’t be mentioned, because it was a misreading of the Brazilian Structure. He added that, as Lawyer Normal, his position was to influence the President to respect the boundaries set by the Structure.

In testimony earlier than the Brazilian Supreme Courtroom, the Lawyer Normal additionally confirmed that the President consulted him about potential authorized arguments that may very well be used to overturn the 2022 election. Nonetheless, the AGU’s head informed Bolsonaro that there was no argument to be made, because the election course of was completely lawful.

The AGU’s position throughout Bolsonaro’s administration highlights that institutional options defending the Lawyer Normal’s autonomy have been key in safeguarding his capability to oppose the President’s coup plot, affirming his position as constitutional guardian throughout the Govt Department. The tenured safety granted by Brazilian legal guidelines ensured that the Lawyer Normal would stay an AGU lawyer, even when Bolsonaro fired him from the Lawyer Normal place. Moreover, many authorities legal professionals employed throughout earlier presidential administrations have been nonetheless working as tenured AGU legal professionals and will type an inside resistance towards authorized recommendation favoring an unreasonable election overturn.

The almost 8,000 authorities legal professionals employed by the AGU type a strong group of civil servants who’re required to be licensed by the Brazilian Bar Affiliation (OAB). To guard their skilled pursuits and to ascertain widespread floor, they shaped associations of public sector workers that signify authorities legal professionals in discussions with politicians and lawmakers.

On this regard, the resistance to Bolsonaro’s coup plot might additionally come from the OAB and authorities legal professionals’ associations, which publicly congratulated the president-elect and accepted the electoral outcomes instantly after the Brazilian Electoral Superior Courtroom (TSE) formally confirmed Bolsonaro’s loss. These statements indicated that Bolsonaro’s coup plan was not a consensus amongst authorities legal professionals and will immediate the Lawyer Normal to unethical conduct.

Nonetheless, the classical options of forms didn’t present enough safety to stop using regulation for non-democratic functions, supporting the private pursuits of the President. We thus must reimagine instruments and options that may strengthen authorities legal professionals in addressing the present autocratic threats, which differ from the authoritarian experiences of the twentieth century.

Shielding the forms towards autocratic threats

We are able to discover some beginning factors for these solutions in debates aimed toward restoring belief in administrative forms’s capability to unravel societal challenges, corresponding to monetary crises and pandemics. This might enable the emergence of reform proposals that strengthen the civil service’s capabilities and counter the dismantling of the executive state by far-right political wings. The continued discussions within the Public Administration (PA) discipline have been exhibiting fascinating insights on tips on how to put together bureaucrats to face up towards present and future autocratic threats. The set of ideas of the Neo-Weberian State (NWS) framework, for instance, presents fascinating alternatives for dialogue between PA and authorized students to strengthen the democratic protect throughout the state forms.

The NWS goals to enhance the classical bureaucratic mannequin by combining stability, long-term planning, professionalization, and dynamic capabilities. As a substitute of counting on market-driven reforms that view forms as a barrier to growth and effectivity, the NWS builds on Weber’s concepts in regards to the state’s position as a facilitator of options and the significance of bureaucratic hierarchy for democracy. It introduces new components to the bureaucratic mannequin of state group, corresponding to remodeling civil servants into skilled managers reasonably than merely specialists within the regulation related to their sphere of exercise, and shifting from an inside give attention to bureaucratic rule-following to an exterior give attention to assembly residents’ wants and preferences.

Provided that it depends on legal guidelines, requirements, and norms to legitimize democratic authority and energy, the NWS generally is a great tool for constructing new authorized options inside forms that put together it for the present context of democratic backsliding. As an example, the NWS framework attracts vital consideration to the values of the general public sector as an important instrument for enhancing democratic values and upholding the rule of regulation, whereas fostering a public service ethos throughout the forms.

For Brazilian authorities legal professionals, this worth development can already be applied by means of reforms within the coaching supplied to newly employed AGU legal professionals and within the open admission checks to pick out them. As a substitute of focusing nearly completely on authorized facets associated to the federal government lawyering job, these checks might additionally have in mind transversal and interdisciplinary content material associated to different social sciences to enhance the standard of a forms that’s already extremely acknowledged for its authorized data, however generally lacks different relational and political capabilities. Oversight organizations, just like the OAB and the AGU’s Inside Investigation Division, would additionally play a key position in monitoring moral and democratic misconduct.

These proposals are solely a primary step. Additional initiatives should have in mind the crucial stability between forms’s accountability and its functionality to strengthen state establishments. In any other case, we’d fall right into a situation of making a strong and remoted technocracy that will lack responsiveness and transparency in decision-making processes. Future analysis can additional take a look at the suitability of the NWS method for these functions and deepen the understanding of how authorities legal professionals have addressed autocratic authorized challenges in backsliding democracies. Subsequently, NWS framework defenders and authorized students not solely can, however ought to, meet for lunch to debate challenges below democratic backsliding and to suggest authorized reforms to boost the forms’s anti-autocratic defenses.