Prosecutorial Ethics under the Reno Rule: Authorized by Law?

Corinna Barrett Lain, University of Richmond


Despite otherwise intense disagreement on this issue, both sides to the Reno Rule debate seem to agree on one point: unless resolved by Congress, the Reno Rule's authority to exempt federal prosecutors from the no-contact rule will be settled in court, perhaps the nation's highest. That being the case, the Justice Department's legal defense of the Reno Rule, as offered in the Rule itself, is certainly worthy of examination. In the analysis that follows, I undertake that examination, arguing that the Justice Department's position is analytically flawed in considering separately the Reno Rule's statutory authority and preemptive power over state laws. The two should be considered jointly, I argue, since preemption requires statutory authority-and statutory authority requires consideration of the presumption against preemption. Taking the latter approach, I ultimately contend that the Reno Rule is not a valid federal regulation because the Justice Department lacked the delegated authority to promulgate it.

Part I provides background for the analysis that follows, summarizing the Reno Rule's rationale, provisions, impact, and statutory authority as set forth by the Department of Justice. Part II argues that the Reno Rule's statutory authority cannot be established without considering the judicially-recognized presumption against preemption. Part III considers the presumption against preemption and the Justice Department's authority to preempt state ethics rules. Part IV concludes that the Reno Rule is not statutorily authorized, and is therefore invalid.