WASHINGTON (AP) 鈥 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鈥檚 legal strategy to kill Manhattan鈥檚 congestion toll 鈥 a blunder the Transportation Department called 鈥渓egal malpractice.鈥
According to , Trump executive actions have been partially or fully blocked by the courts at least 64 times while they鈥檙e in effect in about 45 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鈥檇 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.
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.
鈥淭his is quite rare, if not unprecedented,鈥 said Boston College law professor Kent Greenfield. 鈥淚 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 鈥 and obviously wrong.鈥
Trump allies want to impeach the judges
Trump administration officials, including , have attributed the losses to what they call 鈥渁ctivist鈥 judges bent on impeding his agenda. Some White House allies have called for impeaching judges, with adviser Elon Musk describing it as a 鈥渏udicial coup.鈥
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 鈥渟hocking 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.
鈥淭his Department of Justice will continue to defend President Trump鈥檚 agenda in court, and we remain confident that we will ultimately prevail,鈥 Justice Department spokesperson Chad Gilmartin said in an email.
Trump has seen some legal defeats reversed
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, such as when a panel for the administration to fire thousands of probationary workers in spite of a judge鈥檚 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鈥檚 in while a lawsuit continues.
鈥淭here鈥檚 over 600 District Court judges, any one of which can issue limited or national injunctions,鈥 Turley said. The rulings may be important, he added, 鈥渂ut there鈥檚 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 the judge said was 鈥渂asic鈥 information about one in a series of executive orders targeting a major law firm with punishing sanctions.
鈥淪o you don鈥檛 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鈥檚 being reviewed as part of this review, whether they鈥檙e going to have an ability to see that information, comment on the information, correct the information, object to the information?鈥 Howell asked pointedly. 鈥淵ou can鈥檛 tell me anything about that?鈥
鈥淚 can’t speak to that, Your Honor,” replied Lawson, who 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 prosecutor on the team of special counsel Robert Mueller that investigated Trump.
鈥淵ou鈥檙e not going to really tell me that having someone employed four years ago poses some kind of national security threat?鈥 asked U.S. District John Bates, an appointee of George W. Bush, a Republican.
鈥淣ot per se, no,鈥 replied Lawson.
In another case, Judge Colleen Kollar-Kotelly scolded the Justice Department in court papers last week over what she described as the 鈥渃ontradiction鈥 between statements made in court by one of its lawyers 鈥渁nd the facts on the ground.鈥 While the judge did not contend that the lawyer “intentionally misrepresented the facts,” the appointee of Democratic President Bill Clinton added: 鈥淭he Court must remark that this exchange does not reflect the level of diligence the Court expects from any litigant 鈥 let alone the United States Department of Justice.”
Stuart Gerson, who led the Justice Department鈥檚 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.鈥
鈥淚 sympathize greatly with these folks who are arguing some of the cases, who are just parroting what they鈥檝e been told to say without being able to answer questions about their ramifications, the what-ifs and the background information,鈥 Gerson said.
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