by Charles Siegel
In the first part of this column last month, I set out the ways in which the separation of powers among the three branches of American government is rapidly being eroded. The legislative branch isn’t playing its part in the system of “checks and balances;” it isn’t interested in checking Trump at all. Instead it publicly cheers him on. A feckless Republican Congress has essentially surrendered its authority to the executive.
Having sidelined Congress entirely, Trump has trained his fire on the other supposedly coequal branch of government. The executive branch is engaged in a sustained, multipronged war against the judicial branch. This war is waged every day across the country, inside courtrooms from coast to coast, and outside courtrooms as well.
Inside the courtroom, Trump’s Department of Justice is seemingly trying to create its own reality – a new kind of reality divorced from both facts and law. It is important to understand here that the DOJ, whose lawyers represent the United States in court every day in hundreds of federal courthouses, is not, despite its name, part of the judicial branch. It is, rather, part of the executive branch.
For most of the nation’s history, however, the DOJ has viewed itself as an independent agency, dedicated to pursuing justice – not to advocating for the personal interests of the executive. Its federal law enforcement power was largely wielded independently of Congress or the president. It hasn’t always been this way – Watergate was a particularly egregious example of DOJ being used by a president for his own corrupt purposes. But after Watergate, bipartisan efforts to insulate DOJ from politics ensued, and these were mostly successful. These efforts involved statutory enactments, such as elements of the Ethics in Government Act and the Federal Election Campaign Act. But equally importantly, they also involved a strong commitment to the same basic understanding of DOJ’s role, by presidents of both parties and their appointees. Even in Trump’s first term, his two attorney generals, Jeff Sessions and Bill Barr, both of whom were stout conservatives, ultimately refused to let DOJ surrender to Trump’s commands.
This understanding that has prevailed for the last 50 years has been shredded in six months. Even before he took office, Trump announced he would fire Christopher Wray, the head of the FBI whom Trump himself had appointed, more than two years before the end of his ten-year term, prompting Wray to resign before Trump was inaugurated. DOJ has fired scores of experienced, career prosecutors, at least several dozen of whom worked on cases against the January 6th rioters. DOJ even fired staffers who worked on the cases, such as paralegals and administrative assistants, and fired U.S. marshals who were assigned to the cases as well.
DOJ dropped corruption charges against Eric Adams, mayor of New York City, after Adams essentially volunteered the city’s help with deportation raids if his prosecution was stopped. After DOJ ordered the charges dropped, the United States Attorney for the Southern District of New York, Danielle Sassoon, resigned. It’s worth noting that Ms. Sassoon is hardly a flaming liberal; she is a registered Republican who belongs to the Federalist Society and clerked for Justice Scalia on the Supreme Court. In her resignation letter to Attorney General Bondi, she said that the order to drop the charges against Adams was “inconsistent with my ability and duty to prosecute federal crimes without fear or favor and to advance good-faith arguments before the courts.” Several other resignations followed, including the head of DOJ’s Public Integrity Section and his deputy.
The DOJ official who ordered that the charges against Adams be dropped? That would be Emil Bove. Trump and Republican senators just made him a federal appellate judge for life.
DOJ has simply abandoned all pretense of independence. At the same time, its credibility inside the courtroom has collapsed. Trump’s henchmen got right to work the day he took office. The Project 2025 architects and technicians, the chainsaw-wielding DOGE bros, even the ghoulish Stephen Miller, whose racist xenophobia forced most of his own Jewish family to disown him – they all unleashed a torrent of executive orders and actions. They arbitrarily fired tens of thousands of federal workers, eliminated dozens of federal agencies and programs, and deported thousands of people on entirely new and highly questionable grounds.
This torrent in turn unleashed a torrent of lawsuits, many of which sought immediate, emergency relief and all which DOJ had to defend in court. This task quickly became very difficult, mainly because so much of what was being challenged had been done on very dubious legal grounds to begin with, but also because hundreds of experienced, career DOJ lawyers were no longer there. In the civil rights division alone, nearly 400 employees left, including over 100 attorneys, once the new administration’s intentions became clear. Almost from the start of this administration, then, DOJ has had to defend scores of problematic governmental actions, while having lost hundreds of experienced career attorneys. Perhaps it is not surprising, then, that Trump’s DOJ has seemingly adopted the Trump playbook: delay, deflect, obfuscate, lie.
On July 21st, the Washington Post published an analysis of DOJ’s behavior in cases filed against the government since January. It began with two sentences that would have been unthinkable to any lawyer practicing in this country for the last 50 years: “President Trump and his appointees have been accused of flouting courts in a third of the more than 160 lawsuits against the administration in which a judge has issued a substantive ruling, suggesting widespread noncompliance with America’s legal system. Plaintiffs say Justice Department lawyers and the agencies they represent are snubbing rulings, providing false information, failing to turn over evidence, quietly working around court orders and inventing pretexts to carry out actions that have been blocked.”
It may be difficult for non-lawyers to understand just how unusual and appalling this is. The credibility of DOJ lawyers was simply assumed. Indeed, this credibility was such that the courts traditionally accorded them a presumption that their work and litigation representations could be trusted. As Professor Alan Rozenshtein put it, “judges start from the premise that the government’s stated reasons for its actions are its true reasons and that its factual representations are accurate. Although the presumption is rebuttable, it is not easily displaced, and the burden of proof falls heavily on the party challenging the government’s actions.”
That presumption is in tatters now. Less than a week into the new administration, Professor Steven Vladeck wrote that several of the executive orders issued by Trump in his first days in office staked out legal positions that were, in his words, “frankly preposterous” and “nuts.” From there, things got worse: the government wasn’t just taking preposterous legal positions. Its lawyers were dissembling before the courts.
The deceptions have occurred in all kinds of cases. But DOJ’s stonewalling and defiance has been most pronounced in immigration cases. The notorious case of Kilmar Abrego Garcia is the worst, though far from the only, example. It would take another entire column to fully detail the government’s shifting positions and disingenuous misrepresentations in this case, which is still going on. But DOJ’s treatment of its own lawyer is uniquely shocking.
The government was represented by Erez Reuveni, a career attorney in DOJ’s immigration litigation division. Reuveni represented the United States for 16 years in that division, across administrations of both parties. He was highly respected, and in fact was promoted by Trump’s new Attorney General Pam Bondi to be the acting deputy director of the division. She specifically praised his work in cases DOJ has begun to file against Democratic-controlled “sanctuary cities.”
But after a hearing in the Abrego case on April 4th, he was suspended, and then fired a few days later. What had he done to deserve this? Andrew McCarthy is a former federal prosecutor and longtime columnist for the right-wing National Review. McCarthy is a staunch conservative himself, who regularly criticizes Democratic politicians and what he views as “lawfare” by liberals. Even he couldn’t stomach Reuveni’s treatment: he wrote that Reuveni had been fired “apparently for admitting the undeniable.” He went on:
At Friday’s hearing, Reuveni argued the Trump administration’s position that Judge Xinis has no jurisdiction in the case, both because Abrego Garcia is now in El Salvador (outside the writ of the U.S. courts) and because her directives intrude on the president’s conduct of U.S. foreign policy. These are not convincing legal arguments, but Reuveni gamely made them.
Nevertheless, Reuveni incurred the wrath of his superiors by acknowledging to Judge Xinis that (a) the Trump administration had not provided Reuveni with a satisfactory explanation for why Abrego Garcia was arrested and deported to El Salvador — with no immigration or judicial court appearances and no due process — despite the 2019 court order forbidding repatriation; and (b) he had urged his chain of command to arrange Abrego Garcia’s return to the United States for removal proceedings consistent with federal immigration law but had been rebuffed.
Reuveni’s concessions were sensible….
I do not believe that Reuveni, who has aggressively pursued the Trump immigration enforcement agenda, left viable arguments on the table. Rather, as Justice Department attorneys are supposed to do, he refrained from knowingly making meritless arguments — under difficult circumstances in which the Justice Department opted not to present evidence at the hearing and the judge was outraged by DOJ’s refusal to take curative action when the administration was obviously in the wrong.
In the Justice Department, government attorneys have always been expected to confess error when error had obviously occurred — it’s not a choice, it’s a mandate of candor toward the court. The Justice Department is not a quotidian law firm representing a quotidian client. Its attorneys are officers of the executive branch whose duty it is to ensure that the law is enforced — even the provisions of the Constitution, statutes, rules, and jurisprudence that grant rights and privileges to those against whom the government takes action. That is an everyday aspect of the job — a difficult one and, heretofore, a source of pride among those who perform it.
All of this is having a predictable effect: judges don’t trust DOJ anymore. In July the New York Times compiled excerpts from 48 judges’ rulings – 48! – expressing their frustration with DOJ attorneys’ stated positions and factual representations. It is well worth reading, if crushingly depressing.
Harvie Wilkinson, a Reagan appointee who has long been one of the most conservative appellate judges in the country, called the government’s position in the Abrego case “a path of perfect lawlessness, one that courts cannot condone.” A Bush appointee in Minnesota: “The court cannot imagine how the public interest might be served by permitting federal officials to flaunt the very laws that they have sworn to enforce.” A Biden appointee in Colorado: “This sentence staggers. It is wrong as a matter of law and attempts to read an entire provision out of the Constitution.” And a Bush appointee on the Fourth Circuit Court of Appeals: “As is becoming far too common, we are confronted again with the efforts of the executive branch to set aside the rule of law in pursuit of its goals.” In another piece in the Times, a D.C. federal judge was anonymously quoted as saying that “the inability of the people in front of us to give us answers, or their refusal to do so, is very different than in the past, and we talk about it a lot.” All of this, again, has occurred in just the first six months of this administration.
Beyond lying to federal judges in the courtroom, the government is actively working to make their lives hell outside it. Trump, Bondi, other officials and their spokespeople regularly lambaste federal judges in language that until now would have been far beyond the pale. It’s not new, of course, for Trump to do this; in his first term he denounced judges for rulings he didn’t like. But the rhetoric has gotten much worse this time around. He called James Boasberg, a highly respected federal judge who was nominated by Obama, but was first nominated to the D.C. Superior Court bench by Bush (and who was Brett Kavanagh’s law school roommate), a “Radical Left Lunatic.” The same day, a Republican congressman introduced articles of impeachment against Boasberg. A Department of Homeland Security spokesperson called one of the judges in the Abrego case “unhinged.”
These are many more such examples. And all of these statements are made with full knowledge that Trump’s supporters believe them and may act on them. In just the six weeks between March 1, and April 15, according to the U.S. Marshals Service, 162 federal judges received threats. Two weeks ago, several federal judges shared their experiences at a conference. Judge Jack McConnell, a Rhode Island judge who ruled against the administration in March, said his court had received over 400 “vile, threatening, horrible voice mails.” He played one of them, which was described in the Times as a “furious, profanity-laden tirade that included an explicit assassination threat.”
Another judge on the panel was Esther Salas from New Jersey. In 2020 a disgruntled lawyer rang her doorbell. When her son Daniel answered it, the lawyer shot and killed him, and wounded her husband as well. Now, several federal judges have reported pizzas being anonymously delivered to their homes, addressed to “Daniel.”
Finally, not content to stoke this outrageous atmosphere of menace, DOJ is actually suing federal judges themselves. In June, DOJ sued every federal judge in Maryland, seeking to overturn a standing order that the district court there had issued. In view of DHS’ new practice of abrupt, precipitous deportations, and a resulting surge in habeas corpus petitions, the order simply imposes a 48-hour pause of proceedings so that petitions could be properly considered by the court. That’s all the order does, but DOJ calls it outrageous.
Needless to say, this kind of suit is unprecedented. The court’s judges, forced to hire private counsel, turned to Paul Clement, the leading conservative Supreme Court advocate of the last 20 years. His motion to dismiss the case began as follows: “This unprecedented lawsuit is fundamentally incompatible with the separation of powers. If allowed to proceed, the tensions between the branches produced by such a suit would only escalate, with executive depositions of judicial officers (and vice-versa) and cross-examinations exploring judicial motivations and executive necessities in open court. And if this suit succeeds, it will not be the last—and the next suit could name the Fourth Circuit and cause greater disruption still. But this suit is unprecedented for good reason: It is neither justiciable nor meritorious.”
These are very, very worrisome times for the judicial branch. In part 3 of this column next month, I will focus on how the Supreme Court sadly is also to blame for this disheartening state of affairs.