The Legal Profession in the Executive Branch

The Trump administration is reshaping the roles of the U.S. legal profession and the civil service to use them as a tool to support the President’s political interests. This impacts an understudied and politically significant group of bureaucrats: government lawyers. According to a former Department of Justice lawyer, who became a whistleblower in June 2025, they are being instructed to lie in court and ignore judicial orders. Government lawyers play a critical gatekeeper role in establishing legal principles that can both enable and hinder the systematic weakening of democratic institutions. It is therefore worth taking a look at institutional arrangements that can determine whether they tilt in one direction or the other. The case of Brazil has a lot of important lessons to offer: it shows that while traditional legal protections offered by bureaucratic organizations may be effective in preventing government lawyers from being co-opted by political leaders who follow the fast track to autocracy, these protections will not be as effective in preventing the steady and silent erosion of democratic institutions.

Government lawyers under Bolsonaro

The developments around government lawyers currently taking place in the U.S. find a historical parallel in Brazil; an example that can provide useful insights for thinking about institutional guardrails for the Executive Branch. Although U.S. scholars, such as Scott Cummings, have studied how government lawyers stood up to Trump’s effort to overturn the 2020 election results, little is known about how the Bolsonaro administration tried to use government lawyers as a tool to create an illusion of legality to erode Brazil’s democracy and, ultimately, attempt a coup to remain in power after a 2022 election defeat.

Bolsonaro’s autocratic aims became evident within the first months of his presidency. In 2020, his administration proposed a constitutional amendment aimed at ending civil service tenure protections in Brazil. This proposal, however, did not garner enough support to pass in Congress. Given his lack of majoritarian support from the Legislative Branch, Bolsonaro – among other things – attempted to capture government lawyers working within the Executive.

At the federal level in Brazil, government lawyers are overseen by the Federal Attorney General, who is appointed at the President’s discretion. He or she leads the Federal Attorney General’s Office (AGU), whose creation marked a milestone in the transition to the current democratic regime following Brazil’s 1964-1985 military dictatorship.

The AGU was built on lessons from authoritarian regimes that ruled the country in the 20th century. For the first time, all federal government lawyers would be gathered in a bureaucratic institution with merit-based hiring, tenure protections, structured career paths, and legal proceduralism, aimed at standardizing the interpretation of rules inside the Executive Branch. Like other elites in the Brazilian civil service, they are well-paid, selected through competitive open-admission exams, and have due process rights that prevent arbitrary dismissals. These institutional features were designed to enhance the meritocratic professionalization and to address the patronage between politicians and bureaucrats that has historically influenced the Brazilian state.

Although the AGU does not have prosecutorial powers, it can represent the federal government in court and determine the legality of all rules issued by agencies and the President. This means that every rulemaking process within the Executive Branch requires a legal opinion from a government lawyer analyzing legal and procedural compliance. Government lawyers, thus, have a certain degree of autonomy from politicians and play a key role in creating, implementing, and interpreting laws within the federal government.

The instrumentalization of the AGU

All three Attorney Generals who served during Bolsonaro’s term initially did not appear to be loyalists to the President. Instead, their credentials came from long-serving members of AGU’s staff. But Bolsonaro nevertheless managed to, at least partly, instrumentalize the AGU to weaken Brazil’s democracy, which became evident in two key developments: the deregulation of environmental protections and the role performed by Bolsonaro’s Attorney General in cases brought before the Supreme Court.

In a 2020 ministerial meeting, Brazilian Environment Minister Ricardo Salles – a lawyer with previous government experience at the state level – called on the federal government to take advantage of the media focus on the coronavirus pandemic to further deregulate environmental policies. He aimed to do so by revoking and dismantling rules that did not require prior congressional approval. For this purpose, the Minister argued that the Attorney General should prepare legal “artillery” to support deregulation orders by issuing legal memos and defending the new rules that would be challenged in court. As Katherine Bersch and Gabriela Lotta have shown, the Bolsonaro administration implemented legal changes to non-statutory rules that did not require congressional approval. Thereby, they managed to dismantle environmental agencies and weaken environmental regulatory rules. Although the exact role of government lawyers in this case remains unclear, these legal changes would not have been issued by the Executive Branch without a legal opinion from an AGU lawyer, which demonstrates the success of Minister Salles’s initiative. It also highlights important gaps for future research, which can clarify the exact role of government lawyers in this case and analyze the legal interpretation they used to justify the deregulation rules.

Regarding the second case, research carried out by Eloísa Almeida and Luiza Ferraro found that the AGU contributed to the apparent legality of authoritarian acts, as indicated by an analysis of 290 Supreme Court cases involving judicial review of rules issued by the Executive Branch during the Bolsonaro administration. Although the AGU does not have the duty to defend the lawfulness of the regulations challenged before the Supreme Court, the Attorney General carried out not only a broad defense of all Executive Branch orders but also a very personal defense of the President. For example, the AGU supported Bolsonaro’s policies on the COVID-19 pandemic and argued in favor of distributing hydroxychloroquine to users of the National Health System who were infected by the then-new coronavirus, despite the lack of scientific evidence proving the medicine’s effectiveness.

Government lawyers as a constitutional guardrail

On the other hand, the AGU was a significant barrier to Bolsonaro’s autocratic project when he sought to follow the fast-track way to autocratization through a military coup to overturn the 2022 election results. One of Bolsonaro’s closest aides texted the Attorney General asking for his opinion on a heterodox and minority interpretation of the Brazilian Constitution, which claims that the President can unilaterally call the Armed Forces to intervene politically to resolve conflicts between the branches of the Brazilian government. The Attorney General replied that this issue should not be discussed, as it was a misreading of the Brazilian Constitution. He added that, as Attorney General, his role was to persuade the President to respect the boundaries set by the Constitution.

In testimony before the Brazilian Supreme Court, the Attorney General also confirmed that the President consulted him about potential legal arguments that could be used to overturn the 2022 election. Nevertheless, the AGU’s head told Bolsonaro that there was no argument to be made, as the election process was entirely lawful.

The AGU’s role during Bolsonaro’s administration highlights that institutional features protecting the Attorney General’s autonomy were key in safeguarding his ability to oppose the President’s coup plot, affirming his role as constitutional guardian within the Executive Branch. The tenured protection granted by Brazilian laws ensured that the Attorney General would remain an AGU lawyer, even if Bolsonaro fired him from the Attorney General position. Additionally, many government lawyers hired during previous presidential administrations were still working as tenured AGU lawyers and could form an internal resistance against legal advice favoring an unreasonable election overturn.

The nearly 8,000 government lawyers employed by the AGU form a powerful group of civil servants who are required to be licensed by the Brazilian Bar Association (OAB). To protect their professional interests and to establish common ground, they formed associations of public sector employees that represent government lawyers in discussions with politicians and lawmakers.

In this regard, the resistance to Bolsonaro’s coup plot could also come from the OAB and government lawyers’ associations, which publicly congratulated the president-elect and accepted the electoral results immediately after the Brazilian Electoral Superior Court (TSE) officially confirmed Bolsonaro’s loss. These statements indicated that Bolsonaro’s coup plan was not a consensus among government lawyers and could prompt the Attorney General to unethical conduct.

Nonetheless, the classical features of bureaucracy did not provide sufficient protection to prevent the use of law for non-democratic purposes, supporting the personal interests of the President. We thus need to reimagine tools and features that can strengthen government lawyers in addressing the current autocratic threats, which differ from the authoritarian experiences of the 20th century.

Shielding the bureaucracy against autocratic threats

We can find some starting points for these answers in debates aimed at restoring trust in administrative bureaucracy’s ability to solve societal challenges, such as financial crises and pandemics. This would allow the emergence of reform proposals that strengthen the civil service’s capabilities and counter the dismantling of the administrative state by far-right political wings. The ongoing discussions in the Public Administration (PA) field have been showing interesting insights on how to prepare bureaucrats to stand up against current and future autocratic threats. The set of principles of the Neo-Weberian State (NWS) framework, for example, offers interesting opportunities for dialogue between PA and legal scholars to strengthen the democratic shield within the state bureaucracy.

The NWS aims to improve the classical bureaucratic model by combining stability, long-term planning, professionalization, and dynamic capabilities. Instead of relying on market-driven reforms that view bureaucracy as a barrier to development and efficiency, the NWS builds on Weber’s ideas about the state’s role as a facilitator of solutions and the importance of bureaucratic hierarchy for democracy. It introduces new elements to the bureaucratic model of state organization, such as transforming civil servants into professional managers rather than simply experts in the law relevant to their sphere of activity, and shifting from an internal focus on bureaucratic rule-following to an external focus on meeting citizens’ needs and preferences.

Given that it relies on laws, standards, and norms to legitimize democratic authority and power, the NWS can be a useful tool for building new legal features within bureaucracy that prepare it for the current context of democratic backsliding. For instance, the NWS framework draws significant attention to the values of the public sector as a crucial instrument for enhancing democratic values and upholding the rule of law, while fostering a public service ethos within the bureaucracy.

For Brazilian government lawyers, this value construction can already be implemented through reforms in the training offered to newly hired AGU lawyers and in the open admission tests to select them. Instead of focusing almost exclusively on legal aspects related to the government lawyering job, these tests could also take into account transversal and interdisciplinary content related to other social sciences to improve the quality of a bureaucracy that is already highly recognized for its legal knowledge, but sometimes lacks other relational and political capabilities. Oversight organizations, like the OAB and the AGU’s Internal Investigation Division, would also play a key role in monitoring ethical and democratic misconduct.

These proposals are only a first step. Further initiatives have to take into account the critical balance between bureaucracy’s accountability and its capability to reinforce state institutions. Otherwise, we would fall into a scenario of creating a powerful and isolated technocracy that would lack responsiveness and transparency in decision-making processes. Future research can further test the suitability of the NWS approach for these purposes and deepen the understanding of how government lawyers have addressed autocratic legal challenges in backsliding democracies. Therefore, NWS framework defenders and legal scholars not only can, but should, meet for lunch to discuss challenges under democratic backsliding and to propose legal reforms to enhance the bureaucracy’s anti-autocratic defenses.