WASHINGTON (AP) — To understand the Justice Department's struggles in representing President Donald Trump's positions in court, look no further than a quick succession of losses last week that dealt a setback to the administration's agenda.
In orders spanning different courthouses, to add a proof-of-citizenship requirement to the federal voter registration form, ruled the Republican administration by deporting a man to El Salvador and halted directives that for public schools with diversity, equity and inclusion programs.
That's on top of arguments in which to a Justice Department lawyer about the legality of Trump executive orders targeting major law firms and a department lawyer's accidental filing of an internal memo in court questioning the Trump administration’s legal strategy to kill Manhattan’s congestion toll — a blunder the Transportation Department called “legal malpractice.”
According to , Trump executive actions have been partially or fully blocked by the courts around 70 times while judges have not impeded the president's orders in nearly 50 cases. Dozens of others are pending.
The Trump administration's effort to reshape American civil society, including a crackdown on illegal immigration and , is encountering resistance from judges across a broad spectrum of philosophical leanings as lawyers for the Justice Department in some cases have strained to answer straightforward questions from judges about the basis or rationale for a particular policy or about the mechanics of its implementation. In at least one instance, a government lawyer who became openly exasperated in court at the lack of information he’d been given from the administration was soon after fired by the Justice Department.
Experienced career Justice Department lawyers are leaving
Compounding the problem is an ongoing exodus from the department of experienced career lawyers accustomed to representing the federal government in court. Some of the key arguments in recent weeks have been handled by lawyers newly hired into political, rather than career, positions at the department.
Justice Department leadership has in recent months hired lawyers with conservative credentials from law firms in Washington and with past experience at state and local government agencies — but not necessarily federal experience.
“This is quite rare, if not unprecedented,” said Boston College law professor Kent Greenfield. “I can't think of another instance in which the Justice Department has lost so many cases in a short period of time and the reason they're losing is because they're wrong — and obviously wrong.”
Trump allies want to impeach the judges
Trump administration officials, including , have attributed the losses to what they call “activist” judges bent on impeding his agenda. Some White House allies have called for impeaching judges, with adviser Elon Musk describing it as a “judicial coup.”
But that belies the reality that some of the most blistering rebukes of Justice Department arguments have come from conservative judges like J. Harvie Wilkinson III, an appointee of Republican President Ronald Reagan who said in that the idea the government could not return to the U.S. a man it had deported to El Salvador was “shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear."
Jonathan Turley, a George Washington University law professor, cautioned against making too much so soon in the administration of its legal track record. The Supreme Court with , including three Trump appointees, has yet to weigh in on the vast majority of the cases.
“This Department of Justice will continue to defend President Trump’s agenda in court, and we remain confident that we will ultimately prevail,” Justice Department spokesperson Chad Gilmartin said in an email.
The Trump administration has also succeeded in some cases in beating back legal challenges, and some early defeats at the trial court level have been subsequently overturned by a federal appeals court, in spite of a judge’s earlier opinion.
In another case, the Supreme Court overturned a lower judge's order that had blocked the administration from using an 18th-century to , though the court said they must get a chance to challenge their removals before they're taken from the United States. The Supreme Court also recently granted the Trump administration’s in while a lawsuit continues.
“There’s over 600 District Court judges, any one of which can issue limited or national injunctions,” Turley said. The rulings may be important, he added, “but there’s a great deal of runway between a U.S. district court and the United States Supreme Court.
Judges push Justice Department lawyers to explain
The challenges, however, were laid bare in a Washington courtroom just last week when Richard Lawson, a newly minted deputy associate attorney general, repeatedly struggled to provide what a judge said was “basic” information about one in a series of executive orders targeting a major law firm with punishing sanctions — including the suspension of attorney security clearances.
“So you don’t know whether the firm or the individuals whose security clearances were suspended have been given any notice about the timing of the review, who the decision-maker is, the information that’s being reviewed as part of this review, whether they’re going to have an ability to see that information, comment on the information, correct the information, object to the information?” U.S. District Judge Beryl Howell asked pointedly. “You can’t tell me anything about that?”
“I can't speak to that, Your Honor," replied Lawson, who years before recently joining the Justice Department had worked with Bondi in the Florida attorney general's office and was also a lawyer at a pro-Trump think tank called the America First Policy Institute.
Lawson fared no better weeks earlier when pushed to explain the administration's national security rationale for punishing a different law firm, Jenner & Block, because one of its former partners, Andrew Weissmann, had years earlier been a
“You’re not going to really tell me that having someone employed four years ago poses some kind of national security threat?” asked U.S. District John Bates, an appointee of George W. Bush, a Republican.
“Not per se, no,” replied Lawson.
In another case, Judge Colleen Kollar-Kotelly scolded the Justice Department in court papers last week over what she described as the “contradiction” between statements made in court by one of its lawyers “and the facts on the ground.” While the judge did not contend that the lawyer "intentionally misrepresented the facts," the appointee of Democratic President Bill Clinton added: “The Court must remark that this exchange does not reflect the level of diligence the Court expects from any litigant — let alone the United States Department of Justice."
Stuart Gerson, who led the Justice Department’s civil division under Republican President George H.W. Bush and later served briefly as acting attorney general, said it appeared the Trump administration was sending lawyers into court "without adequate information and instructions.”
“I sympathize greatly with these folks who are arguing some of the cases, who are just parroting what they’ve been told to say without being able to answer questions about their ramifications, the what-ifs and the background information,” Gerson said.
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