How Trump’s DOJ Burned Its Most Important Asset
When the courts can’t trust the government, it is a major problem in our judicial system.
PRESIDENT TRUMP’S $1.776 BILLION weaponization fund to compensate January 6th rioters for their troubles is now (probably—perhaps mostly) dead. But that doesn’t mean that you should stop paying attention to it.
It’s not just that the fund could eventually be brought back to life, as Trump himself has expressed a desire to see. It’s not even that Senate Republicans have refrained from banning the fund explicitly as part of the reconciliation bill they just passed, or that other parts of Trump’s dubious “settlement” remain in place, such as a provision giving his family immunity from IRS audits of any past tax returns.
Those are important dimensions of this story, of course. But the thing that remains most troubling is what’s going on with the underlying case—Trump’s $10 billion lawsuit against the IRS—and the way it attests to an alarming trend in the U.S. justice system.
A federal judge in Miami who is involved in the case recently took the step of reopening it because she feared that the Department of Justice might have lied to her.
Technically, what the judge said was that she wants to investigate “grievous allegations” that the deal to resolve the suit was “premised on deception.” (That’s federal judge-speak for “The United States Department of Justice might have lied to me to get this done.”)
This qualifies as just-never-happens-in-normal-times stuff in the world of law. But in the age of Trump, it isn’t the first documented instance of the administration upending the abstruse but foundational legal principle that government officials are assumed to have acted honestly and in good faith. It is called the “presumption of regularity,” a centuries-old concept conceived in England and baked into American law. The Trump administration has acted with almost total disregard for it hundreds of times. And its de facto loss has huge ramifications that are being felt throughout our legal system.
Since the 1920s, the Supreme Court has held the view that, absent clear evidence to the contrary, government officials ought to be believed to have properly done their jobs in a manner that accords with established procedures, and to have acted without pretext. It’s a two-way street. While the courts treat the government officials as honest brokers, Justice Department guidelines carry with them the notion that DOJ lawyers should be held to a particularly high standard, as they carry the entire federal government’s reputation with them.
But with Trump in office, government attorneys have consistently frittered away the basic trust that courts are expected to extend to them. We saw the initial signs of this during the first Trump administration, as when Chief Justice John Roberts wrote in a 2019 opinion that the government’s narrative around a citizenship question on the census seemed “contrived.” (That’s federal judge-speak for “total BS.”) He continued from there: “We cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’”
It has only gotten worse since Trump’s return to power last year. Recently, judges from across the ideological spectrum have either explicitly declined to extend the presumption of regularity to the DOJ or, at a minimum, excoriated its lawyers for bad behavior—ranging from actions that were, at best, questionable to others that plainly implicate the DOJ’s attorneys in straight-up lying.
Some of these cases have dominated the news, such as the saga of a possible quid pro quo between the DOJ and former New York Mayor Eric Adams. If you don’t recall, that case involved dropping strong charges against the then-mayor in exchange for his support for Trump’s immigration enforcement plans in the city. The corruption was so overt that it led a federal judge to declare that “everything here smacks of a bargain.”
Likewise, in the case of Kilmar Ábrego García, a Salvadoran man illegally deported because of an “administrative error” last spring, a deeply frustrated judge called out the Trump administration’s “willful and bad faith” behavior, its “continued mischaracterization” of a Supreme Court order for the government to “facilitate” Ábrego García’s return from El Salvador, and its “deliberate evasion” of basic legal obligations during the case. Judges appointed by presidents of both parties have variously called the administration’s conduct “egregious,” “brazen,” “lawless,” “disingenuous,” and a host of other pointed terms to emphasize the scale of the break with essential legal norms.
THIS REPEATED MISCONDUCT places a tremendous strain on our legal system. By appearing as a party in tens, if not hundreds, of thousands of cases a year, the Justice Department plays a singular role in the American legal system. If it cannot be trusted to tell the truth—to make good on the “presumption of regularity”—it can bring the whole system down with it.
A loss of faith of this magnitude in the DOJ erodes the healthy functioning of the courts. Generations of television shows about the workings of the law have convinced the public that the legal system is nothing but trials (which are typically wrapped up in an hour-long episode, with a big plot twist coming about 42 minutes in to boot). The reality is that most of the legal system is painfully mundane and not very telegenic. It subsists in meetings in court about discovery, to determine scheduling, or to establish how many pages a party’s motion needs to be. When courts no longer believe that they can trust the government on the big things, like not lying about key facts in big cases, they also lose faith in the government’s trustworthiness on the little ones—those immeasurably small but critical tasks that keep the system humming.
And if the courts can’t trust the DOJ, one of the consequences is that there will be more work for everyone. This happened last year when the DOJ first tried to drop fraud charges against Andrew Wiederhorn, the former CEO of a fast food company, who, as luck would have it, happened to have been a major Trump donor. The judge, while noting the deference to which prosecutors are entitled, still called the parties in and ordered the department to provide an additional explanation as to why they were seeking to dismiss the case.
It might sound minor, but every time a judge has to hold a hearing to figure out whether the Justice Department is lying, he or she is also not holding a trial for other parties who are entitled to their own day in court. (This is a compounding tragedy, given that the federal court system is already hopelessly backlogged.) Every time a lawyer has to sit down to write and file a response to the DOJ’s latest antics, he or she is not spending time serving his other clients. And every time attorneys for the Justice Department are hauled into court to explain the DOJ’s behavior, they are not . . . well, doing whatever else they are supposed to be doing.
Finally, all of this is particularly hard on DOJ personnel, whose ranks have been decimated already by the administration’s well-documented purges. Many remaining staffers have chosen to leave because they don’t want to risk their law licenses by being forced to make ethically ambiguous assertions before courts.
The administration may hold the view that the personnel reductions are welcome, that they represent a needful culling of any staffers who are not loyal to the president’s mission. But the truth is that the DOJ is simply not able to recruit top legal talent anymore. Nowhere was this clearer than in an X post this past January from Chad Mizelle, who had recently left as chief of staff to then–Attorney General Pam Bondi. Mizelle took to social media to ask that people who were interested in becoming federal prosecutors send him a direct message to get the ball rolling. It’s a measure of how far we have sunk that if you want one of the most prestigious jobs in the legal profession, you can apply for it in basically the same way you might reach out to someone selling a lightly used, hopefully bedbug-free twin mattress on Facebook Marketplace.
It’s worth pointing out that the distrust has started to escape containment within the legal system. The courts’ loss of trust in the Justice Department has undermined public faith in convictions, acquittals, and pretty much anything with the DOJ’s name on it. This is a real problem. A system of laws can only remain viable if it is trusted by those it serves.
When Acting Attorney General Todd Blanche gets formally nominated for the post, as Trump has said he intends to do, and sent to the Senate for his confirmation hearings, the first question senators should ask him is why they should trust him any more than anyone in the legal world trusts the organization he’s been helping to run. Right now, that’s not a lot.
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