‘Furious’ judges are tired of assuming Trump administration’s good faith 

The Trump administration’s brazen disregard for the judiciary is shattering the longstanding norm that judges assume Department of Justice (DOJ) attorneys are operating in good faith.

One judge recently said she was “furious” and “beyond disappointed” as she grilled the DOJ over whether the administration lied to her about plans to overhaul a historic golf course in Washington, D.C.

Another, when blocking the White House’s press ban, expressed deep doubt about the administration’s national security claims, writing he did not have to approach their argument with a “naivete from which ordinary citizens are free.”

For decades, the federal government and public officials have enjoyed what’s called the presumption of regularity, an assumption that they were acting in good faith and telling the truth in court. But over the past month, several Democratic- and Republican-appointed judges have signaled those days are coming to an end.

“Judges are figuring out that either the attorneys can’t or won’t manage the Trump administration,” David Schultz, a constitutional law expert and professor at Hamline University, told Democracy Docket.

The Trump administration’s view is that “the most important thing is to win,” said Jeremy Fogel, a retired federal judge who is now the executive director of Berkeley Judicial Institute.

“And if that means cutting corners, if that means either not complying with a court order or partially complying with a court order, or delaying compliance with a court order, or moving in ways that make it impossible for the court to act effectively, no one’s going to get in trouble for doing that [within the Trump administration],” Fogel said. “And in fact, there’s some encouragement to do that when you think of the role of the Justice Department as being at war with the judiciary, which is what the attorney general said before he took on his present position.”

But the lengths the administration is willing to go are shattering court norms in ways that may have permanent consequences for federal attorneys in administrations to come.  

“There’s every reason courts ought to be skeptical of what this administration argues in court,” said Michael Gerhardt, a court expert at the University of North Carolina School of Law.

If the presumption of good faith is on its way out, the major question is what comes next?

“That’s a really unfamiliar place to be,” Fogel said. “That’s new ground.”

In the D.C. golf course case, U.S. District Judge Ana Reyes reportedly became so exasperated after the administration suddenly cut down hundreds of trees that she demanded to know in real time which DOJ attorneys were signing onto legal filings attesting that the renovation was in planning stages only. The DOJ later unsuccessfully tried to have her removed from the case, accusing her of “histrionics” during the hearings.

The Trump administration’s antics are forcing judges to adjust how they approach federal attorneys and the conditions they set out in court orders to ensure those mandates are followed.

“I don’t know how you can completely game everything on the judge’s part, but I think they’re getting closer to trying to do that,” Schultz said.

Judges now “have to anticipate every eventuality, and you have to put it in a written order, in capital letters,” Fogel said.

One judge, U.S. District Judge Paula Xinis, successfully limited one Trump administration goal ahead of the midterms: publishing a federal portal of so-called state citizenship lists intended that voting rights groups warned could be used to purge voter rolls and disenfranchise eligible voters.

Xinis, late last month, ordered the administration to give 30 days’ notice of any plans to activate the portal before the midterms – meaning the Department of Homeland Security can’t instantly publish them without violating a court order. 

Xinis has come up against the administration’s attempts to outrun judicial review before. She oversaw last year’s high-profile case on the administration’s wrongful deportation of Kilmar Abrego Garcia. At the time, she accused the administration of “willful and intentional noncompliance” with her orders and threatened contempt. 

One judge, U.S. District Judge James Boasberg, is pushing contempt proceedings against the Trump administration after it ignored a court order blocking deportation of hundreds of Venezuelan migrants to El Salvador. But the effort is slow-going. Boasberg’s been pursuing it for more than a year.

“The problem is that these things are happening so fast that by the time you get around to doing that, the damage is done,” Fogel said.