From immigration fights to defending President Donald Trump’s federal government cutbacks, the Justice Department has responded to more than a hundred emergency lawsuits in the first hundred days of the presidency with surprising consistency.
The approach: Defend whatever Trump wants. And when that’s not working, muddy the waters.
At times, that includes skipping or fast-tracking the established order of when cases can be appealed in federal civil cases, with the Justice Department pushing some ongoing disputes from trial-level courts up to the Supreme Court or other appellate courts as soon as it can.
At other times, it’s included an approach filled with “fallacy,” or a very selective reading of a court order, as Judge Paula Xinis of the federal court in Maryland wrote recently in an immigration case.
In the Xinis case, regarding the mistakenly deported immigrant Kilmar Abrego Garcia, the administration was told by the Supreme Court that Xinis at the trial level could order the US to “facilitate” his return. Xinis has said the way the Justice Department interpreted that order – by doing nothing except stating they would be willing to send a plane to Latin America to retrieve him – is “redefining ‘facilitate’ contrary to law and logic.”
“The administration appears to be driven not by any legal theory but by a theory of power,” one former Justice Department official from Democratic administrations told CNN.
The Supreme Court has said the Trump administration must give notice to detainees who are being sent to El Salvador under the Alien Enemies Act so they have the opportunity to challenge their deportations. But courts are now questioning whether the administration’s notice is enough.
The ACLU, representing the detainees, has alleged they may not even get 24 hours’ notice of removal. The group has also raised the concern that the notices are being given in English rather than the detainees’ first language, Spanish, though a Justice Department lawyer denied this in court on Friday.
A refrain in court from administration lawyers since Trump took office has been to argue that the power of the president is nearly irreproachable – a theory that is likely to be tested by Trump at the Supreme Court.
At times, this means the administration has argued – in public and in court – that Trump may derive more power than judges because he was elected president. This argument of a mandate from voters most recently came up this week during court arguments on Trump’s aggressive immigration program.
“The president was elected on this exact program, and it remains his most popular policy, despite the media’s attempts to turn it otherwise,” Justice Department attorney Tiberius Davis told a federal judge in New York.
Judge Alvin Hellerstein responded, “We’re not talking about popularity. I understand the desire to remove but there’s also due process of law.”
That argument has also arisen as Justice Department lawyers have defended the data-seeking and funding-slashing efforts of Trump’s adviser Elon Musk and the Department of Government Efficiency, the attempts to shutter agencies including USAID and the Consumer Financial Protection Bureau and the firing of federal appointees and career civil servants.
It also came up as the Justice Department defended a Trump executive order targeting a law firm that represented his political opponent. At a hearing, a top DOJ official told the judge that courts could not second guess decisions made by the president, in the name of national security, to revoke lawyers’ security clearances or take other actions that undermine their ability to their jobs.
Ty Cobb, who represented Trump during his first term in the special counsel investigations, said on CNN’s “Erin Burnett OutFront” that the Justice Department lawyering in the immigration case before Xinis was filled with “obfuscation and bad faith.”
He added that the bolder Justice Department lawyers become in difficult-to-defend cases, they may lose credibility in court.
“This is the first judge who has so far in the Trump world cases finally abandoned the presumption of regularity that normally attaches to the representations of government lawyers,” Cobbs said on Tuesday. “She doesn’t believe them. She doesn’t trust them.”
‘This is a losing proposition all around,’ Reagan-appointed judge says
In some cases, this administration’s actions wouldn’t have been approved by legal checks within the executive branch, several former officials say.
One former Justice official, who asked to remain anonymous out of fear of retaliation, pointed to how the administration has ordered restrictions on law firms for political reasons, which multiple judges already have said are unconstitutional.
Those unprecedented executive orders against firms like Perkins Coie, Jenner & Block and WilmerHale were unlikely to have been approved by lawyers in the White House counsel’s office or the Justice Department’s Office of Legal Counsel under any previous administration of either party.
An executive order signed by President John F. Kennedy in 1962 dictates how the Justice Department must look at presidential proposals to clear them legally. Historically, administrations use the Justice Department’s Office of Legal Counsel to form legal opinions on policies and executive action, and the White House counsel’s office also plays a role in examining whether and how president’s prerogatives can be done.
“That balance is really out of whack here,” a Biden-era Justice Department official told CNN.
The current administration is “asking a different question” than previous ones internally in their approach to the law, the former employee of multiple administrations said. “It’s not, can we do this, but, is anyone going to stop us?”
A federal appellate judge this month, J. Harvie Wilkinson III, who has been on the bench in Richmond, Virginia, since the Reagan administration, sounded this alarm as well in a recent opinion. Wilkinson wrote about President Dwight Eisenhower’s willingness to set aside his opinions when the Supreme Court ordered the desegregation of schools in 1955.
“Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around,” Wilkinson wrote. “The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions … We yet cling to the hope that it is not naive to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos.”
‘I just don’t have that information’
In the case where Perkins Coie is suing over Trump’s retaliation, a Justice Department lawyer on Wednesday highlighted another approach in some of the cases, where the administration’s lawyers are unprepared and can’t or won’t give answers to factual questions.
This has both hurt and helped the administration at times, such as in DOGE privacy cases and immigrant deportation battles.
On Wednesday, the Justice Department lawyer, Richard Lawson, sparred for several minutes with federal Judge Beryl Howell over whether there are even written agreements between the administration and some law firms to provide free legal work in line with Trump’s priorities, and he couldn’t answer whether Perkins Coie would have been spared from an executive order if it had agreed to pledge pro bono work.
“I can’t speak to it,” Lawson told the judge repeatedly. “I wasn’t coming briefed for the matters outside of Perkins Coie … I just don’t have that information.”
Similarly, Justice Department lawyers have struggled to provide answers when judges have asked point-blank questions about who at DOGE was in charge, and the role there of Musk.
And in the immigration cases, administration lawyers have stumbled rather than giving answers on who was involved in setting the controversial immigrant removal policies, and in one case taking several days to muster Cabinet official declarations that some publicly available flight data and other details were so-called “state secrets.”
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