Trump DOJ's conduct called 'unlawful,' 'unethical' and 'unseemly' by federal judges
Across the country, federal judges are calling out Department of Justice lawyers, questioning in unprecedented ways whether they can be trusted to tell the truth or uphold centuries-old legal norms.
From Washington, D.C., to Rhode Island to Oregon, federal judges nominated by presidents from both parties, including Donald Trump, have zeroed in on what’s called “the presumption of regularity.” It essentially means that judges must presume that the government — whether it be federal prosecutors, an IRS auditor or an FBI agent — did their jobs according to the rules and in good faith.
Until Trump’s second term, which has seen an exodus of veteran DOJ lawyers and a transformative shift in priorities from issues like enforcing civil rights to instead defending a mass deportation agenda, this foundational tenet had rarely been discussed in federal courtrooms, former judges, lawyers and scholars say. But as Trump’s DOJ exhibits behavior that judges have called “unlawful,” “unethical,” “unseemly” or otherwise dishonest, adherence to that bedrock standard is now being questioned.
ProPublica reviewed hundreds of cases since Trump retook the White House in which judges criticized the actions of DOJ lawyers and found more than 40 in which they explicitly referenced the presumption of regularity. In many cases, judges have expressed frustration that they can no longer take the government at its word.
“Judges simply don’t believe the representations that are being made by United States attorneys, assistant United States attorneys and the like,” said John E. Jones, a former federal judge for the District of Pennsylvania, appointed by President George W. Bush.
“I don’t think in the annals of the Department of Justice, in the history of jurisprudence in the United States, we’ve ever seen anything close to this.”
In Rhode Island in May, Trump-appointed federal Judge Mary McElroy rebuked federal prosecutors’ conduct — saying they withheld information and misrepresented facts — as she quashed their requests for a subpoena in their investigation into a hospital’s care of transgender children. The judge alleged the DOJ had inappropriately claimed its investigation was operating out of Texas to secure subpoenas targeting sensitive medical records of patients in another state and that it falsely claimed the Rhode Island hospital hadn’t communicated with the department.
“The discrepancy between the honorable conduct expected of federal prosecutors and DOJ’s tactics in this case is unsettling,” McElroy wrote. “The Court cannot help but share the sentiment that ‘[t]he presumption of regularity that has previously been extended to [DOJ] that it could be taken at its word — with little doubt about its intentions and stated purposes — no longer holds.’”
Judges have emitted a chorus of condemnations against the legal basis for some of Trump’s political agenda, including the mass firings of federal workers, an immigration dragnet that has imprisoned hundreds of U.S. citizens and retribution campaigns against the president’s political enemies.
In doing so, federal judges are imbuing forceful language into their orders in a way that scholars say signals to the Trump administration that the third branch of government is losing trust in the Justice Department.
“I don’t think in the annals of the Department of Justice, in the history of jurisprudence in the United States, we’ve ever seen anything close to this.”
Former federal Judge John E. Jones, a George W. Bush appointee
Federal judges rarely grant interviews, and none of the judges who criticized the Justice Department in their orders granted interviews to ProPublica.
In a statement, a spokesperson for the DOJ said its attorneys are “dedicated public servants who represent the United States with integrity, in accordance with their ethical obligations and the law.”
“The Department stands firmly behind the professionalism and good faith of its attorneys,” said spokesperson Kiersten Pels. The White House did not respond to a request for comment.
Federal judges have found that the government filed statements generated by artificial intelligence that referenced nonexistent case law, wrote briefs that ignored facts and filed declarations with inaccurate dates, the ProPublica review shows.
In one case, the government included documentation claiming a detainee had been convicted of marijuana possession in 2009. That detainee, the judge noted, citing what she called the government’s persistent “sloppiness,” would have been 4 years old.
“This Court will no longer blindly accept statements of fact from [the U.S. government] unless they are made under oath by an individual with personal knowledge,” Judge Christine O’Hearn, a President Joe Biden appointee, wrote in New Jersey while reviewing a writ of habeas corpus petition filed by a man who claimed he was unlawfully imprisoned by immigration officers. O’Hearn accused the government of defying her orders when, instead of releasing the man, Immigration and Customs Enforcement transferred him to a different facility in New York.
In Minnesota, the state’s top political leaders had publicly clashed with the administration following the violent ICE raids that led to the deaths of two U.S. citizens. Then the administration filed a flurry of subpoenas against them.
Last month, Judge Patrick J. Schiltz, who was appointed by George W. Bush and clerked for Supreme Court Justice Antonin Scalia, slammed the government’s actions and “spurious claims,” saying the presumption of regularity was being abused.
“Initiating a criminal investigation in order to harass political opponents or to coerce them into taking official action — particularly official action that the federal government cannot directly require those political opponents to take — is a blatantly unlawful and unethical use [of] the grand-jury process,” the judge wrote.
“Breakdown” of a Presumption
The presumption of regularity creates a high bar for those suing the government or defending themselves against it in criminal cases. They often must provide evidence that the government willfully violated a policy or otherwise deviated from its charge — that is, did something irregular — to overcome the standard.
It’s a shield the government wields often, with little notice, and one that is almost always successful. But overcoming that presumption has become increasingly common under Trump’s second term, according to court watchers.
About half of the cases ProPublica identified as questioning the presumption come from districts, including D.C., Maryland and Virginia, where by proximity and jurisdiction many of Trump’s actions are challenged and often heard by Democratic-nominated judges. The Southern District of New York, which has issued repeated rebukes of Trump administration actions, and the Northern District of California, another Democratic stronghold, are other hotbeds of judicial scrutiny.
Last September, D.C. District Magistrate Judge Zia M. Faruqui accused the administration of working around the federal grand jury process, getting an indictment from a state court after prosecutors had failed to get one in his court, which he called “unseemly,” if not “unlawful.” He fired off one of the earliest signs that the presumption itself could come into question.
“This only deepens the growing mistrust of the actions of prosecutors,” the judge wrote. “That is a sentiment that was once unthinkable, but the irregular is now the regular.” While the case was largely managed by assistant U.S. attorney Caelainn Carney, according to court transcripts, Faruqui was aiming his frustration at her bosses, including senior prosecutor Jonathan R. Hornok, and the leadership at DOJ. Neither attorney responded to requests for comment.
Pels, the DOJ spokesperson, told ProPublica that Faruqui “was wrong on the law” and noted that after the government appealed to the district’s chief judge, his order was overruled. “Judge Faruqui has a long-standing documented pattern of editorializing from the bench beyond the scope of the cases before him,” Pels added.
But in recent months, skepticism about the presumption has also come from judges appointed by Republicans, such as McElroy, or in GOP strongholds.
In Indiana, Trump-appointed federal Judge James Patrick Hanlon ordered the release of Salah Sarsour, president of the Islamic Society of Milwaukee and a lawful U.S. resident, from ICE custody in March. Sarsour’s lawyers argued the government had targeted him to suppress his First Amendment right to free speech. The DOJ invoked the presumption of regularity and argued his arrest was part of an anti-terrorism dragnet, which the judge threw out.
In the Southern District of Ohio, Judge Michael R. Barrett, appointed by George W. Bush, ordered ICE to release a detainee after concluding the presumption had been overcome because the government hadn’t presented a reasonable argument that the man was a flight risk.
News outlets, including CNN, have documented federal judges’ ire with Trump’s DOJ, and some of the cases under question have been well-publicized, such as the government’s illegal deportation of Maryland resident Kilmar Abrego Garcia to El Salvador. In that case, Judge Paula Xinis, a President Barack Obama appointee, criticized the government, saying, “You have taken the presumption of regularity, and you’ve destroyed it.”
Many of the rulings challenged one of Trump’s hallmark efforts: immigration enforcement and deportations.
“The presumption of regularity and integrity previously and routinely afforded to the Executive branch and the United States Attorney’s Office has been undeniably eroded in this jurisdiction and across the country,” O’Hearn wrote in February, noting that the federal government had repeatedly violated court orders in her district and others related to immigration operations.
In another immigration detention case, this one in Washington state, Biden-appointed Judge Lauren King said, “[t]he ‘presumption of regularity’ is dislodged here by the numerous factual errors in Respondents’ filings and by their conflicting representations.”
Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former federal judge from California, said what’s happening in the courts feels more like a “political conflict” than the normal ebb and flow of the justice system.
“It’s really one branch that is really sort of questioning the legitimacy of the other one,” Fogel said. “I think the judges are trying to stand up for the legitimacy of their branch.”
Just Security, an online law and policy journal, has been tracking cases in which federal judges have admonished Trump’s prosecutors, including those involving the presumption.
“We’re witnessing a breakdown in the ways in which any administration ordinarily carries out its responsibilities, through the Justice Department in particular,” said Ryan Goodman, Just Security’s co-editor-in-chief.
Erosion of Trust, Ethics Inquiries
The erosion of trust from the federal bench comes as Trump has profoundly shifted priorities at the DOJ to align with his political platform: ending civil rights and diversity programs, deporting immigrants and stripping away environmental protections.
Those who deal with DOJ lawyers have noticed the difference in court.
Mitch Bernard, chief counsel at the nonprofit Natural Resources Defense Council, has faced off on environmental issues with the DOJ many times. Although they may disagree, he said, he always expected his opponents to be “fair and above board.”
That dynamic is gone, he said.
“I would call it a transformation of the role of the Justice Department,” he said. “There are many different judges in different jurisdictions not only ruling against the government but calling the government out for dishonesty and dissembling, and that’s an extraordinary thing.”
The result, Bernard said, is that “the government will lose more cases as a result of the way the Justice Department is behaving.”
“There are many different judges in different jurisdictions not only ruling against the government but calling the government out for dishonesty and dissembling, and that’s an extraordinary thing.”
Mitch Bernard, chief counsel at the Natural Resources Defense Council
Meanwhile, groups such as his are benefitting from the government brain drain. “We hired 10 litigating attorneys last year,” he said. Of those, eight came from the DOJ.
Judges aren’t just losing faith in the DOJ. Some are pushing to sanction Justice Department lawyers.
This month, Miami federal Judge Kathleen M. Williams ruled that Trump’s lawsuit against the IRS was an improper exercise in self-enrichment, citing the president’s lawyers for a series of misstatements in the case.
The Obama appointee referred the lawyer who brought the president’s case against the IRS, Alejandro Brito, to the Florida Bar for potential disciplinary proceedings. She also forwarded her ruling to disciplinary officials in New York, who had earlier received an ethics complaint about acting Attorney General Todd Blanche.
A DOJ spokesperson called the Blanche case “nothing more than a politically motivated bar complaint, filed by partisan activists who disagree with this Administration’s policies.” Brito did not respond to a request for comment.
In Rhode Island, McElroy referred DOJ lawyers to a review board for possible discipline for their handling of the hospital investigation.
“As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary,” McElroy wrote. “DOJ has proven unworthy of this trust at every point in this case.”