Indeed, the possibilities of McDade are limited only by the imaginations of defense counsel in making their arguments to the court. At the very least, this will divert scarce resources from the pursuit of justice to unnecessary litigation. Moreover, this new law will encourage further variance in state ethics rules than exists today. With state conduct rules clearly applying to Federal prosecutors, those who advocate for the interests of criminal defendants will be encouraged in their efforts to get states to make their rules even tougher for law enforcement. The problem is especially acute because Federal criminal investigations have become increasingly national in scope, routinely crossing state lines.
Prosecutors often supervise investigations or grand juries in many states at the same time.
For Federal prosecutors, the need to comply with any applicable state ethics rule is more important than the success of a particular case. An ethics violation goes against a prosecutor personally, and can impact his or her career and livelihood. The McDade Amendment will limit multi-state prosecutions to the rules of the most restrictive state involved. Indeed, because of the need for Federal authorities to maintain clarity, we could have one state bar essentially dictating how all Federal investigations in the country are conducted. Let me state that I do not dispute that the drafters and supporters of the McDade legislation had the best of intentions.