The Presumption Of Irregularity

In so many ways, the Trump administration has been one long assault on the rule of law, now culminating in a budding police state. (In retrospect, Donald Trump’s entire career has also been one long assault on the rule of law without ever being held to account.) One of the most important elements of Trump’s attack on our rule of law has been the almost complete corruption of the Department of Justice. And nowhere is the corruption of the DOJ more apparent than the disdain with which the agency’s prosecutors approach the courts they come before, including the Supreme Court.

Last week, the acting US Attorney in the Southern District of New York, one of the last holdouts against DOJ corruption, admitted to a federal judge that the DOJ had blatantly lied in its filings involving the suspension of the Trusted Traveler program for residents of New York State. The DHS had suspended the program back in February, claiming that the state’s new law that allowed undocumented immigrants to get drivers’ licenses and limited some federal access to that data had made it impossible for DHS to properly vet New York residents for the travelers’ program. In its filings in the legal case brought against that suspension, the administration had claimed that New York was singled out for suspension because it was the only state or territory that restricted access to motor vehicle information. That was a lie as several other states had similar restrictions but were still allowed to continue in the Trusted Traveler program. In her mea culpa, the US Attorney declared that the DOJ “deeply regret the foregoing inaccurate or misleading statements and apologize to the court and plaintiffs for the need to make these corrections at this late stage in the litigation”.

Incredibly, this was not the first time the administration had brazenly lied to the federal judge who heard the Trusted Traveler case. This same judge, Jesse Furman, heard the case involving the census citizenship question. In that case, DOJ lawyers themselves provided an entirely phony legal pretext demanded by the Commerce Department in order to add the question, claiming the citizenship data was needed to enforce the Voting Rights Act (VRA). The DOJ lawyers and the Commerce Department both then lied to the courts about the origin of the question. Evidence of those lies emerged during the case, especially when DOJ attorneys were forced to testify under oath that the citizenship data was “not necessary” for enforcing the VRA, and Furman eventually ruled that the question could not be added to the census. In that decision, the judge declared, “While the Court is unable to determine-based on the existing record, at least-what Secretary Ross’s real reasons for adding the citizenship question were, it does find, by a preponderance of the evidence, that promoting enforcement of the VRA was not his real reason for the decision. Instead, the Court finds that the VRA was a post hoc rationale for a decision that Secretary had already made for other reasons”.

After the trial, even more evidence emerged that the government not only lied to to the court in this case but also withheld over 10% of the relevant documents. Accordingly, in May, Furman actually sanctioned the DOJ, forcing them to pay the legal costs of the plaintiffs in the case. Yet, even as the DOJ was being sanctioned by Furman in May, it was lying to him in the Trusted Traveler case.

Furman’s ruling did not end the citizenship case as the DOJ appealed his decision to the Supreme Court. At this point, the recent death of a Republican political operative had provided even more evidence that the actual reason for adding the citizenship question was to reduce the number of Hispanics counted in the census in order to skew redistricting more favorably toward Republicans, while also providing the phony legal pretext for doing so that the DOJ used word-for-word in its response to the Commerce Department.

Even so, in the face of such evidence, Trump’s Solicitor General, Noel Francisco, decried what he labeled the “new evidence” as a “conspiracy theory” that was “implausible on its face” in a brief to the Supreme Court. In fact, it was the administration’s arguments that were implausible, with almost everything the administration claimed about the case being a lie. As Adam Serwer documented, “When the Trump administration told Congress and the public that the citizenship question on the census was needed to enforce the Voting Rights Act, that was a lie. When the Trump administration denied that its intent was to use the data to draw congressional districts that would enhance white voting power and therefore grant Republicans an advantage, that was false. When Commerce Secretary Wilbur Ross told Congress the data would not be used for immigration enforcement, that was untrue. Francisco told the Court that the census questionnaire had to be finalized by June; the Department of Justice has now reversed that position”.

The Court eventually blocked adding the question on procedural grounds based on violations of administrative law in a 5–4 decision, but that didn’t stop three conservative justices from accepting the administration’s proven lies at face value. Justice Thomas, in an opinion joined by Kavanaugh and Gorsuch, went so far as to accuse Furman of bias in his decision that the administration had misled the lower court, writing, “A judge predisposed to distrust the Secretary or the administration could arrange those facts on a corkboard and-with a jar of pins and a spool of string-create an eye-catching conspiracy web”. Justice Alito went even further, basically claiming the Court should not be concerned whether it was being lied to or not, stating, “To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether…the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.”

Of course, this was not the first time that Francisco had openly misled the Supreme Court and not the first time that a significant number of justices decided they didn’t care. In fact, it began with the Trump administration’s very first big case to come before the Court — the Muslim ban. Francisco was forced to write a letter correcting an error on his oral argument summation where he declared “My final point has to do with…recognition that, if the President were to say tomorrow that he was sorry, all of this would go away. Well, the President made crystal-clear on September 25, 2017 that he had no intention of imposing the Muslim ban”. In fact, the President had made no such declaration on September 25th. Rather the statement he made on that date actually undercut Francisco’s argument, arguing that the ban should be “far larger, tougher and more specific-but stupidly, that would not be politically correct”. The statement that Francisco told the Court he meant to cite was from 9 months earlier on January 25, 2017 where Trump did state “We’re talking about-no, it’s not the Muslim ban. But it’s countries that have tremendous terror”.

As Regina Jefferies notes, “Francisco’s misstatement in fact cuts straight to the heart of the argument before the Court: whether President Donald Trump’s travel ban was motivated by anti-Muslim animus”. And, in fact, as Joshua Gelzer points out, on multiple occasions after that January statement, Trump and his administration made clear that anti-Muslim animus was what was driving the “travel” ban, describing the ban’s purpose as “preventing Muslim immigration”, declaring “President Trump think[s] Muslims are a threat to the U.S.”, and noting “the president has never actually disavowed” his Muslim ban promise. Geltzer summarizes Francisco’s actions thusly, “If the solicitor general really thinks that his error was about a mistaken date, then he’s still being obtuse as to the actual positions of his boss, President Trump-and to why his closing argument was, as I and others have argued, so dangerously misleading”.

In the end, the Supreme Court upheld Trump’s Muslim ban on the third attempt in a 5–4 decision with the conservatives making up the entire majority. Once again, the conservatives did not seemed bothered by the fact that the Solicitor General and the DOJ were lying to them. As Marty Lederman noted, “The majority’s resolution is especially unfortunate because this is a case in which the Court’s conclusion-that the President conceivably might have promulgated the Travel Ban for independent reasons of national security-is belied by a fundamental thing that virtually everyone knows (and that the Court does not deny): namely, that the Travel Ban would not exist but for its foreseeable effect in excluding Muslims from entry”.

Perhaps the most egregious example of the willingness of the DOJ to lie in federal court is Attorney General Barr’s attempt to drop the case against Mike Flynn even after Flynn pled guilty twice and no new exculpatory evidence emerged. Throughout the Flynn case, the DOJ argued that Flynn’s lies were material. As @emptywheel documents, “[I]n this case, Trump’s Acting Attorney General Rod Rosenstein agreed Flynn’s lies were material when he approved false statement charges against Flynn in December 2017, Trump’s Acting Attorney General Matt Whitaker’s DOJ argued Flynn’s lies were material when DOJ moved to sentencing in December 2018, Bill Barr’s DOJ argued ‘the FBI was engaged in a legitimate and significant investigation’, when it successfully defeated a request to dismiss the prosecution last fall, and Barr’s DOJ argued Flynn’s lies were material in January”.

Yet, all of a sudden in January, Barr suddenly decided that Flynn’s lies were not, in fact, material and the case should be dismissed. Even so, there are a number of specific motions that the judge in the case still needs to rule on in which the DOJ is still arguing Flynn’s lies were material despite Barr’s reversal. Incredibly, at present, the DOJ’s actual legal position in this case is that Flynn’s lies were material and also that Flynn’s lies were not material. Both cannot be true. The court-appointed arbiter in the case has clearly stated that Barr’s arguments “are not credible” and are “so irregular, and so obviously pretextual, that they are deficient”. Indeed, as @emptywheel again notes, “[T]hat’s the reason why the DC Circuit granted mandamus in the Flynn case — not because of any injury that Flynn might face from having Sullivan scrutinize the case, but because having to answer for what Barr did here would — simply having to show up to the kind of hearing that DOJ shows up to every day and answer questions under oath — would do grave damage to DOJ”.

Under the law, the government benefits from a collection of norms called the presumption of regularity, in other words, the assumption that government officials “acted with proper motives, haven’t lied and have generally comported themselves as ethical professionals”. The Trump administration and the DOJ have continually tested that presumption. Remarkably, as far as I can tell, the only sanction administration officials have received for their continued deceptions of the courts has come from Judge Furman in the census case. And even there, the sanction only required the government of pay the legal fees of the plaintiffs, the equivalent or less of a slap-on-the-wrist fine for corporate malfeasance which is simply treated as the cost of doing business.

Lawyers are considered officers of the court and, in that role, they are supposed to support the laws of the land and the Constitution. Although a group of lawyers, including four past presidents of the DC Bar Association, have now made a formal complaint regarding Attorney General Barr to the DC Bar, most of the DOJ lawyers who have been involved in the above deceptions of the courts are still in their jobs or, having proven their willingness to compromise their ethics, have moved on to white-shoe law firms or lobbying jobs. It is yet another example of the widespread corruption of this country’s professional classes.

Originally published at on July 28, 2020.

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