Federal judges are increasingly questioning the DOJ presumption of regularity, a basic assumption that government lawyers and officials act lawfully and in good faith. ProPublica reported that judges appointed by presidents from both parties, including Donald Trump, have used unusually sharp language toward Justice Department conduct during Trump’s second term.
ProPublica said it reviewed hundreds of cases since Trump returned to the White House and found more than 40 in which judges explicitly addressed that presumption. The pattern matters in court because the presumption gives the government a procedural advantage: judges ordinarily start from the idea that prosecutors, agencies and federal officers followed the rules unless a challenger can show otherwise.
What is the presumption of regularity?
The presumption of regularity is a legal doctrine requiring courts to assume that government officials performed their duties properly and honestly. A person suing the government, or defending against it, usually must present evidence of irregular conduct to overcome that assumption.
John E. Jones, a former federal judge in Pennsylvania appointed by President George W. Bush, told ProPublica that judges “simply don’t believe the representations” being made by federal prosecutors and other government lawyers. He said he had not seen anything comparable in the history of the Justice Department.
The Justice Department rejected that picture. DOJ spokesperson Kiersten Pels told ProPublica that department lawyers are “dedicated public servants” who act with integrity and follow their legal and ethical duties. Pels said the department stands behind its attorneys’ professionalism and good faith. The White House did not respond to ProPublica’s request for comment.
One of the clearest rebukes came in Rhode Island. In May, U.S. District Judge Mary McElroy, a Trump appointee, quashed subpoena requests tied to a Justice Department investigation of a hospital’s care for transgender children. McElroy wrote that prosecutors withheld information and misrepresented facts, including where the investigation was based and whether the hospital had communicated with the department. She said DOJ had become “unworthy” of trust in that case and referred lawyers to a review board for possible discipline.
ProPublica’s review also found cases in which judges said government filings included nonexistent case law generated by artificial intelligence, ignored relevant facts or used declarations with wrong dates. In one immigration detention case, the government submitted records saying a detainee had a 2009 marijuana conviction. The judge noted that the detainee would have been 4 years old at the time.
In New Jersey, U.S. District Judge Christine O’Hearn, appointed by President Joe Biden, said she would no longer accept factual statements from the government unless they came under oath from someone with personal knowledge. She wrote that trust routinely given to the executive branch and the U.S. Attorney’s Office had been eroded in her district and elsewhere, citing immigration cases in which the government violated court orders.
Other judges have reached similar conclusions. In Minnesota, Judge Patrick J. Schiltz, appointed by George W. Bush, criticized subpoenas aimed at state political leaders after clashes with the administration over ICE raids. He wrote that using a criminal investigation to harass political opponents or pressure them into official action would be an unlawful and unethical use of the grand jury process.
ProPublica reported that many of the rulings involve immigration enforcement, including detention and deportation disputes. In Maryland, Judge Paula Xinis said in the Kilmar Abrego Garcia case that the government had “destroyed” the presumption of regularity. In Washington state, Judge Lauren King wrote that factual errors and conflicting government statements had dislodged the presumption in another detention case.
Some judges have moved beyond criticism. In Miami, Judge Kathleen M. Williams referred lawyer Alejandro Brito to the Florida Bar after ruling that Trump’s lawsuit against the IRS was an improper exercise in self-enrichment and citing misstatements in the case. She also sent her ruling to New York disciplinary officials, who had received an ethics complaint involving acting Attorney General Todd Blanche. DOJ called the Blanche complaint politically motivated, and Brito did not respond to ProPublica’s request for comment.
This story draws on original reporting from Techdirt.
