Losing trust in Justice Dept., judges call out its lawyers’ behavior
- The San Juan Daily Star
- 5 hours ago
- 5 min read
By MATTATHIAS SCHWARTZ
In late April, a lawyer for the Justice Department told a federal judge that her colleagues had been in the midst of negotiations with a Rhode Island hospital about turning over gender-transition treatment health records, only for the hospital’s lawyers to stop responding.
But Judge Mary S. McElroy of U.S. District Court in Rhode Island concluded that was not true. While the government claimed it had not heard from the hospital since February, emails showed the hospital’s lawyers had stayed in close touch.
In a scathing ruling May 14, McElroy called the government’s account “misleading, if not utterly false.” At issue in McElroy’s view was the “awesome power” wielded by government lawyers and the trust that they will “play fair and be honest” with courts.
The Justice Department “has proven unworthy of this trust at every point in this case,” she wrote.
The opinion was one of several heated rulings from federal judges in recent weeks castigating the government’s lawyers for withholding information and making assertions that turned out to be at odds with the facts.
A judge in Chicago said transcripts of grand jury proceedings had been redacted to hide misconduct by her district’s U.S. attorney’s office. Another judge in Rhode Island referred an assistant U.S. attorney for potential discipline after he admitted that he had knowingly withheld informaation from the court.
Like the one involving the Rhode Island hospital, the complaints have come as administration lawyers seek to defend major parts of President Donald Trump’s agenda.
The government lawyers whose honesty the judges have called into question are a mix of career civil servants, political appointees and newcomers brought in as the Justice Department makes a public hiring push to fill its depleted ranks. Their missteps in court come as the department’s leadership takes an unusually combative tone with judges who rule against them, and department lawyers try to balance judges’ demands against the often stubborn posture of the executive-branch clients they represent.
But regardless, an increasing number of judges appear to be questioning the longtime assumption that Justice Department lawyers can be taken at their word, part of the “presumption of regularity” that experts say allows federal courts to operate swiftly and smoothly.
In a statement, a Justice Department spokesperson disputed that lawyers were coming up short on ethics. “Any attack on the professionalism or integrity of DOJ attorneys is outrageous and unjustified,” said the spokesperson, Natalie Baldassarre. “The department will continue to vigorously advance and defend President Trump’s agenda in federal court with the utmost respect for the institution and rule of law.”
By giving voice to their lack of trust, the judges are heralding major risk to a legal order that has been in place since Watergate. Codified in a Justice Department reference text called the Justice Manual, the basic idea is that department lawyers should be held to a higher standard because they carry with them the reputation of the entire executive branch. Before her death in 2019, Judge Patricia Wald described her expectations of the Justice Department as the “five C’s”: competence, credibility, civility, consistency and candor.
“You can’t hide the ball. You have to be honest,” said Andrew C. Mergen, who served in the Justice Department for more than 30 years under presidents of both parties and now teaches at Harvard Law School. The pattern of judges accusing department lawyers of dishonesty, he said, “is such an extraordinarily awful look for the Justice Department.”
‘The duty of candor’
The recent wave of rebukes surrounding courtroom honesty has come after months of clear warnings from the judiciary about separate but related concerns.
Judges have over the past year called out the administration for making dodgy legal arguments, filing dishonest testimony and failing to comply with court orders. Some of the earlier problems stem from the fact that Justice Department lawyers often represent other government agencies in court, including the Homeland Security Department, which has proved to be a difficult client, particularly in immigration cases.
But judges have taken a distinctly harsher tone in recent weeks, assigning responsibility directly to individual Justice Department lawyers for their own representations in court.
“This reckless disregard for the duty of candor owed to a federal court is appalling,” wrote McElroy, referring to lawyers’ ethical obligation to never knowingly present false evidence or make false statements of fact or law. She cited recent cases in Pennsylvania, Washington and Oregon in which other judges raised questions about the government’s honesty.
The same issue arose in Chicago, where Judge April M. Perry found that Justice Department lawyers had improperly influenced a grand jury in a case in which the government was seeking indictments against four activists who were protesting outside an immigration detention facility.
In one of the Rhode Island cases, the federal bench appointed an outside counsel to investigate the head of the civil division of the U.S. attorney’s office for withholding information from her about a migrant whose case appeared before her. Judge Melissa R. DuBose said she believed the lawyer showed a “lack of candor” and that the incident represented “a serious breakdown in the ethical codes.”
In a May 22 ruling, Judge Waverly D. Crenshaw Jr. of the Middle District of Tennessee raised doubts about a former prosecutor’s claim that he — and not his bosses in Washington — had been the one to revive a criminal case against a Salvadoran man whose immigration saga is among the best known of the Trump administration’s crackdown.
Last year, the Supreme Court ordered the Trump administration to facilitate the return of that man, Kilmar Abrego Garcia, to the United States after he was improperly deported from Maryland to El Salvador in what the government called an “administrative error.”
Robert E. McGuire, then the chief federal prosecutor in Crenshaw’s district, told the judge that he alone made the decision to then indict Abrego Garcia on human trafficking charges stemming from a 2022 traffic stop. In fact, emails showed that Justice Department leaders in Washington stayed in close touch with him about the case, calling it a “top priority” and sending him information about a new witness after homeland security officials decided to reopen the investigation.
The judge expressed serious skepticism about McGuire’s account of his own decision-making, referring to the prosecutor’s “purported belief” and saying that he considered McGuire’s testimony, “to the extent that it is credible.”
‘It will get harder’
The government’s responses to these charges have varied — an apology in the Rhode Island case before DuBose, a claim in the Chicago case that there was no intent to mislead and a more combative posture in the case before McElroy insisting that the government never misrepresented the facts.
In public statements, Justice Department officials have attacked “rogue judges” and “activist judges,” who they claimed were abusing their authority, and in some cases filed misconduct complaints against them. DuBose and Perry are appointees of President Joe Biden. McElroy was appointed by Trump.
But Mergen, the Harvard law professor, said he has heard from career Justice Department lawyers who were demoralized by the pressures of the job, particularly the flood of petitions from immigrants challenging their detention. Pressure from the high workload, he said, was aggravated by a combination of a politicized institutional culture and judges’ growing skepticism — all of which could be contributing to the courtroom missteps.
“The risk is that the longer this goes on, the fewer good people are willing to stay,” he said. “Over time, it will get harder to do even the routine cases if judges don’t trust you.”