On June 5, 2025, James Percival sat before the Senate Committee on Homeland Security and Governmental Affairs and testified about his fitness to serve as General Counsel of the Department of Homeland Security. His prepared statement ran several pages. He described his career in Florida state government. He talked about watching DHS “be off mission” from his vantage point working for the Florida Attorney General. He thanked, by name, his “boss and mentor for the last six years” — Senator Ashley Moody, who had previously served as Florida’s Attorney General and was now introducing him to the committee.
What Percival did not mention — and what nobody on the committee raised — was that his former office had an active federal lawsuit against the very department he was about to lead as its top lawyer. He had been, by subsequent reporting, the lead attorney for Florida on that case. Nobody on the committee asked about it.
Seven months later, on February 4, 2026, the Department of Homeland Security entered a consent decree in Florida v. Mayorkas — a consent decree is a legally binding settlement agreement, entered by a court, that carries the force of law without going through Congress — curtailing the federal government’s authority to use its parole power to release migrants into the country for the next 15 years. The decree was not legislation. It was not a regulation subject to notice and comment. It was a court-entered settlement between two parties who agreed on the outcome. It will bind the next four presidential administrations.
Percival had assumed his role at DHS approximately seven weeks before the decree was filed.
The story that’s been told about Florida v. Mayorkas is a story about collusive litigation — the Trump administration and allied Republican states agreeing to settle immediately, making policy without Congress. That story is accurate. But it leaves the more specific question unasked: how did the lawyer who prosecuted this case from one side end up as the top legal officer at the agency that settled it, and what, if anything, was supposed to prevent that?
The stakes extend beyond immigration. If a lawyer can prosecute the government and then switch sides to settle the same case — binding future administrations for 15 years — the architecture meant to prevent conflicts of interest has a gap that any future administration can walk through. The answer requires looking at three separate systems that were each designed to address part of this problem, and understanding why none of them reached it.
The statute that faces the wrong way
Federal criminal law has a revolving door provision. 18 U.S.C. § 207 — the federal revolving-door statute — imposes a lifetime ban on former government employees who “switch sides” — who leave a federal agency and then represent private parties on the same matter they worked on while in government. It has real teeth: criminal prosecution, fines, imprisonment.
It was written to solve a specific problem. The drafters were worried about the government lawyer who has “his eye cocked toward subsequent private employment” — who might compromise the government’s interests while still inside because he was already thinking about the private clients waiting for him on the way out. The statute protects the government from former insiders working against it.
Percival’s situation is the inverse. He worked against the government, then joined it. The statute was never written for that. It faces one direction, by design, and the direction it faces is outward.
This is not a loophole. It is an architectural choice made in a different era, when the scenario it missed was not imaginable at scale. It is now imaginable.
The rule with the self-defeating waiver
There is a professional ethics rule that does face the other direction. Florida Rule of Professional Conduct 4-1.11(d) — the jurisdiction governing Percival’s active bar license — provides that a lawyer currently serving as a government officer shall not participate in a matter in which they participated personally and substantially while in private practice, “unless the appropriate government agency gives its informed consent.”
Read that again: unless the appropriate government agency gives its informed consent.
The agency being sued — whose decision to settle will be overseen by its own top lawyer — decides whether its own top lawyer’s participation in the settlement is permissible. The rule exists, faces the right direction, and hands the key to the person it was designed to restrain.
A jurisdictional wrinkle makes this worse. Despite practicing in Washington, Percival does not appear to hold a DC Bar license. DC’s version of Rule 1.11 doesn’t even contain a paragraph (d) — it only faces outward, like the criminal statute. The DC Bar acknowledged this gap explicitly in Ethics Opinion 308, which directs incoming government lawyers to rely on general conflict rules that don’t map cleanly onto this scenario. Percival is governed by Florida’s rule — which at least covers incoming government lawyers, but with the self-defeating waiver.
For contrast: New York’s equivalent — NYSBA Ethics Opinion 1029 — addresses almost exactly this fact pattern. A lawyer who participated personally and substantially in litigation against a government agency, then joined that agency. The opinion finds the conflict disqualifying. Non-waivable. Not curable by consent. Florida’s version is softer. The specific jurisdiction Percival practices in has the weaker rule.
A 2021 law review article examining federal ethics enforcement found that “a federal official in the United States is literally more likely to be struck by lightning than to be charged with violating a government ethics law.” That framing was not about Percival. It was about the system he operates inside.
The pledge that was removed
There was a third layer. Every administration since Obama has required political appointees to sign an ethics pledge. Biden’s version — Executive Order 13989, Section 2 — included a two-year bar on participating in “any particular matter involving specific parties that is directly and substantially related to my former employer or former clients.”
Under that pledge, Percival would have been prohibited from any participation in Florida v. Mayorkas through at least early 2027. The consent decree was filed January 30, 2026.
On January 20, 2025, Trump rescinded EO 13989 as part of a mass revocation of Biden-era orders. Unlike in 2017, when his first administration issued its own ethics pledge, no replacement has been issued. As of this writing, Trump administration appointees operate under the baseline federal ethics rules — the statute that faces the wrong way and the professional rule with the self-defeating waiver — and nothing more.
The pledge was not decorative. It was load-bearing. It was the only mechanism in the architecture capable of operating in real time, before the consent decree was signed and entered and binding for fifteen years. Rescinding it without replacement was not a norm violation in the technical sense. It was a legal act with a specific, traceable consequence.
What we don’t know
There is no public paper trail showing who negotiated the consent decree terms on the DHS side — whether Percival was formally walled off before his recusal took effect, or whether someone else made the calls. His recusal agreement covers “lawsuits he worked on, directly related to Florida.” Whether the consent decree itself — a settlement agreement, not a lawsuit — triggered that language is genuinely ambiguous. DHS has stated he complied with his commitments. The paper trail that would confirm or complicate that statement is not public.
It is also possible that DHS formally exercised its authority under Florida Rule 4-1.11(d) to waive the conflict. If so, the rule was technically satisfied. The protective purpose of the rule was not.
The Jeffrey Clark disciplinary proceeding — Clark was a senior Justice Department official who attempted to use the department to overturn the 2020 election results — offers a timing benchmark. Clark’s ethics charges related to conduct during the 2020 election. The DC Board on Professional Responsibility recommended disbarment in July 2025 — years after the conduct occurred, and while the DC Court of Appeals was still considering the matter. Bar discipline structurally cannot operate in real time against a sitting senior official. It is an accountability mechanism that arrives, if it arrives at all, after the consequences are permanent.
The working hypothesis
The federal ethics system failed here not because any single rule was absent, but because three systems that were each designed to address part of this problem were never built to interlock.
The criminal statute has teeth and faces outward. The professional rule faces inward but lets the conflicted party hold the key. The executive pledge connected them — it was the only real-time mechanism capable of catching what the other two missed. It was specifically removed.
The result is a 15-year consent decree on immigration parole authority, entered by a judge, enforceable against future presidents, negotiated in the shadow of a conflict that no remaining rule could reach in time.
This is not primarily a story about one lawyer. It is a story about an architecture. The federal ethics system was designed for a world where the revolving door spun in one direction — out of government, into private practice. Nobody stress-tested the other direction at this scale: a lawyer who prosecuted the government, then became the government’s lawyer on the same matter, in an administration that had removed the only rule capable of stopping it.
The architecture did exactly what it was built to do. That is the problem.
What would change my mind
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A paper trail emerges showing Percival was genuinely excluded from the consent decree negotiations before his recusal kicked in — not a general statement of compliance, but documented evidence of a formal screen with specific dates and identified alternative decision-makers. That would narrow this from architectural failure to architectural near-miss.
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Evidence surfaces that DHS did not grant informed consent under the Florida rule, which would mean the rule was violated rather than merely waived. That would make this a disciplinary matter, not just a structural one — though the Florida Bar’s enforcement timeline (roughly 200 final discipline orders per year from 15,000 inquiries) would still mean any resolution arrives years after the 15-year decree is signed.
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Congress passes legislation or a new executive order extending revolving-door restrictions to cover incoming government lawyers — closing the inbound gap in § 207 or reinstating a binding ethics pledge — before the end of 2027. That would indicate the system is capable of self-correction at a speed that matters.
Absent those, the door remains one-way.
If you found this useful, the best thing you can do is forward it to one person who would push back on it. I’d rather be wrong in public than right in private.