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Justice Department Versus the Federal Judiciary · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 1: President Donald Trump has repeatedly railed against federal judges and
0:14
Speaker 1: even Supreme Court justices. Radical left judges.
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Speaker 2: It's a nasty judge.
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Speaker 3: Radical left lunatic judges.
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Speaker 1: His attorney general, Todd Blanche, has described the administration's relationship
0:27
Speaker 1: with judges as a war.
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Speaker 4: There's a group of judges that are repeat players, and
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Speaker 4: that's obviously not by happenstance.
0:34
Speaker 3: That's intentional.
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Speaker 2: And it's a it's a war, man.
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Speaker 1: And the Justice Department has followed through by treating judges
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Speaker 1: as adversaries to be challenged and at times violating court orders,
0:48
Speaker 1: leading judges to become increasingly mistrustful of the government's representations.
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Speaker 1: The latest escalation is top Justice Department officials accusing judges
0:59
Speaker 1: of misconduct and bias against Trump, asking them to recuse
1:04
Speaker 1: themselves And this week, filing motions to get two Minnesota
1:08
Speaker 1: federal judges recused from ongoing immigration cases. Joining me is
1:14
Speaker 1: Judge Jeremy Fogel, who formerly sat on the United States
1:17
Speaker 1: District Court for the Northern District of California. Judge Fogel,
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Speaker 1: what we've been seeing in Washington, D.C. lately is this
1:25
Speaker 1: ballooning of cases over President Trump's attempts to put his
1:30
Speaker 1: mark on D.C., whether it's the proposed monumental arch or
1:36
Speaker 1: the potential destruction of the Kennedy Center, the White House ballroom,
1:42
Speaker 1: the renovation of a public golf course. About nine federal
1:46
Speaker 1: judges have been involved in these cases challenging Trump's various
1:51
Speaker 1: construction projects, where they have to deal with an administration
1:56
Speaker 1: that's basically trying to outrun the courts in you know,
2:00
Speaker 1: speeding to do work before a court can intervene. And
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Speaker 1: it seems like they're either becoming increasingly mistrustful of the
2:08
Speaker 1: administration or just frustrated. You could see it in some
2:12
Speaker 1: of the hearings. Do you sort of sympathize with what
2:15
Speaker 1: they're dealing with?
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Speaker 2: Oh, sure. I mean, you know, the legal process is
2:18
Speaker 2: meant to be deliberate and orderly. And, you know, people
2:21
Speaker 2: submit briefs and they make arguments. And, you know, you
2:23
Speaker 2: have an opportunity to weigh what the correct course of
2:26
Speaker 2: action is under the law. And the speed at which
2:29
Speaker 2: things are happening makes that impossible. So everything is being
2:32
Speaker 2: done on a urgent basis and with partial information. I
2:36
Speaker 2: live in D.C., so I've seen it up close. We
2:38
Speaker 2: saw it with the Kennedy Center. We saw it with
2:40
Speaker 2: the trees on the golf course. We saw it with
2:42
Speaker 2: the ballroom. They're all similar in the sense that things
2:45
Speaker 2: are being done in the moment, and the judges are
2:48
Speaker 2: being asked by people who object to those things to act.
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Speaker 2: And the courts just aren't really in a position to
2:53
Speaker 2: move quite that quickly. They move as quickly as they can,
2:56
Speaker 2: but the judges want to give reasoned opinions. They want
2:58
Speaker 2: to explain why they're doing. That's the way they've been trained.
3:00
Speaker 2: That's what their obligation is. The ballroom case is really
3:03
Speaker 2: the perfect example because by the time the issue got
3:06
Speaker 2: to the Supreme Court, basically it had been done. I mean,
3:09
Speaker 2: it was at a point where there really wasn't much
3:11
Speaker 2: that a court could do, even if it felt that
3:13
Speaker 2: what had been done was incorrect. Same thing happened most
3:16
Speaker 2: recently with the golf course. I mean, the trees were
3:18
Speaker 2: cut down before the judge was really even in a
3:20
Speaker 2: position to deal with the fact that she had made
3:22
Speaker 2: an order that they were supposed to inform her of
3:24
Speaker 2: any meaningful developments. So, you know, I think it's really
3:27
Speaker 2: hard on the judges. It's hard on them procedurally. I'm
3:30
Speaker 2: not asking for sympathy. It's just in order for them
3:32
Speaker 2: to do their jobs correctly, they can't do it in
3:35
Speaker 2: that kind of a timeframe with that kind of aggressive
3:38
Speaker 2: action being taken by a party. And then what happens
3:41
Speaker 2: is when they do speak up and when they do
3:43
Speaker 2: try to raise caution flag or, you know, raise the
3:46
Speaker 2: stop sign, then they get vilified. And, you know, it
3:49
Speaker 2: happened to Judge Cooper in the Kennedy Center case. It
3:52
Speaker 2: happened to Judge Reyes in the Tree case. So it's
3:54
Speaker 2: happening pretty much across the board. And I think it's
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Speaker 2: challenging both judicially and personally.
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Speaker 1: Judge Reyes said she was furious about the government cutting
4:03
Speaker 1: down those hundreds of trees over a holiday weekend with
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Speaker 1: little notice. And she said in her memorandum, breakneck speed
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Speaker 1: to clear trees that pose no harm, the reason disputed,
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Speaker 1: the budget unclear, the environmental impact unstudied, the urgency none,
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Speaker 1: next steps, bulldoze, hundreds more. She said that she was
4:26
Speaker 1: furious in the courtroom and, you know, she chastised the
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Speaker 1: government attorney. I've heard judges yell in a courtroom many times.
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Speaker 1: At what point does it cross the line?
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Speaker 2: Well, judges shouldn't yell in the courtroom ever, in my
4:40
Speaker 2: humble opinion. And I was a judge for 37 years,
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Speaker 2: and I tried very hard not to yell at people.
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Speaker 2: I just think judicial demeanor is really important. It's what
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Speaker 2: people remember the most sometimes, even more than the ruling
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Speaker 2: that's made. In a high-stakes case like this, that's not
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Speaker 2: really true. But I think it is unusual for a
4:56
Speaker 2: judge to be so pushed by circumstances that she or
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Speaker 2: he does that. One of the things that troubles me
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Speaker 2: here is I'm not defending Judge Reyes or any judge
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Speaker 2: losing their temper in the courtroom, but what's happening here
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Speaker 2: is that it's been used as a diversion. It's been
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Speaker 2: used as a distraction from what the actual issues are.
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Speaker 2: I don't blame her for being angry. I mean, one
5:15
Speaker 2: can look at how that anger was regulated or not
5:17
Speaker 2: regulated in the particular situation, but the fact that she
5:20
Speaker 2: was angry is totally understandable given the circumstances. So It
5:24
Speaker 2: is somewhat disingenuous to use one of my least favorite
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Speaker 2: words that lawyers use. It's somewhat disingenuous to say, well,
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Speaker 2: this is all about Judge Reyes being emotional in the courtroom.
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Speaker 2: And it's much more about, well, the government had a
5:35
Speaker 2: court order which it disregarded. And that's what that's about.
5:39
Speaker 2: And I have to add here, I think Judge Reyes
5:42
Speaker 2: has been quite unfairly targeted, not only in this case,
5:44
Speaker 2: but in other cases she's handled. And personal attacks referring
5:47
Speaker 2: to her gender, her sexual orientation, her national origin, all
5:52
Speaker 2: sorts of things that are really kind of irrelevant to
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Speaker 2: the legal issues in the cases before her. And I
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Speaker 2: think that's really unfortunate.
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Speaker 1: And she said that, you know, she's gotten death threats.
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Speaker 1: The president on social media called her a crazed lunatic.
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Speaker 1: And his words can sometimes lead to threats coming from
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Speaker 1: his followers.
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Speaker 2: Well, I don't know that the president or any other
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Speaker 2: administration official has actually threatened a judge. But what happens
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Speaker 2: is when they use language like that, when they make
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Speaker 2: these ad hominem attacks and they call people crazy lunatics
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Speaker 2: and worse, that incites other people. And you see it
6:25
Speaker 2: on social media. You see it within minutes after things
6:28
Speaker 2: like that are said. You can see the viral comments
6:31
Speaker 2: on social media, which... do involve threats. And some of
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Speaker 2: the threats are taken quite seriously by the marshal service,
6:37
Speaker 2: which needs to protect the judges. And they need to
6:39
Speaker 2: say it's not just against the judges. I mean, the
6:41
Speaker 2: judges are used to controversy. A judge has to have
6:44
Speaker 2: a certain amount of thick skin to deal with controversy.
6:46
Speaker 2: It comes with the job. But your family didn't sign
6:48
Speaker 2: up for it. Your spouse or your children or the
6:50
Speaker 2: other people you love in your life, I mean, they
6:51
Speaker 2: didn't sign up for it. And the threats are being
6:54
Speaker 2: directed against them. You know, I have to say it's
6:56
Speaker 2: not partisan in the sense that it's not only against
6:59
Speaker 2: judges who are on the Democratic side. Justice Barrett's family
7:03
Speaker 2: was threatened when she made a ruling the president didn't like.
7:05
Speaker 2: And Justice Kavanaugh was threatened with assassination by somebody who
7:09
Speaker 2: didn't like rulings that he had made. So it is
7:10
Speaker 2: kind of bipartisan. But there's an atmosphere where rhetoric that
7:14
Speaker 2: attacks judges personally... I want to be really clear. I mean,
7:17
Speaker 2: under the First Amendment, if people want to criticize a ruling,
7:19
Speaker 2: they have every right to do that. And they can
7:21
Speaker 2: criticize the ruling in very sharp terms and they can
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Speaker 2: appeal the ruling and they can try to stir up
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Speaker 2: public outcry against the ruling. That's fine. But it's out
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Speaker 2: of bounds to go after the judges personally, and it's
7:31
Speaker 2: certainly out of bounds to go after the judges' families personally.
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Speaker 2: And that's what's happened. And it's an indirect approach in
7:37
Speaker 2: the sense that, as I said, I don't think any
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Speaker 2: government officials actually made threats. But they use rhetoric, which
7:42
Speaker 2: you think about it for five minutes, you can see
7:44
Speaker 2: that somebody would take that as an invitation to make threats.
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Speaker 2: And I think that's what's happened.
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Speaker 1: Several judges in D.C., they've sort of expressed displeasure about
7:53
Speaker 1: having to micromanage these projects.
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Speaker 4: So.
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Speaker 1: Judge Christopher Cooper, who's handling the Kennedy Center case, said,
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Speaker 1: you're asking the court arguably, you know, to micromanage the
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Speaker 1: Kennedy Center, you know, construction projects, which obviously I'm not
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Speaker 1: in a position to do, and it's not my role
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Speaker 1: to do. And Judge Reyes said, I don't want to
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Speaker 1: be the overseer of Parks and Rec. I'm no Amy Poehler.
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Speaker 1: So they're put in a position because there's no trust
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Speaker 1: that the Trump administration won't move forward on the projects.
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Speaker 1: they're in a position of having to micromanage construction projects.
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Speaker 2: Yes, that's exactly right. I think the effect is that
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Speaker 2: unless the order says you may not, I mean, Judge
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Speaker 2: Reyes said you don't take any significant actions without getting
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Speaker 2: court approval. That was what her order said. It was
8:42
Speaker 2: an oral order. She did not say do not cut
8:45
Speaker 2: down this tree located in the middle of the East
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Speaker 2: Potomac golf course. You know, she didn't get down to
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Speaker 2: that level of And if she tries to do anything
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Speaker 2: about it, if she tries to impose sanctions or initiate
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Speaker 2: a contempt proceeding, I predict one of the things the administration,
8:59
Speaker 2: one of the things that DOJ will do is they'll say, well,
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Speaker 2: the order was unclear and it didn't say we couldn't
9:04
Speaker 2: cut trees down. And this happened with the Kennedy Center, too.
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Speaker 2: It had to do with scaffolding and locking the doors
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Speaker 2: and building a fence and all these other things that
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Speaker 2: Judge Cooper had to deal with. He didn't anticipate all
9:14
Speaker 2: the things they were going to do. And I think
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Speaker 2: the result of the government's actions was that he really
9:19
Speaker 2: was put in the position where he had to micromanage
9:21
Speaker 2: that situation. And judges are not well situated to do that.
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Speaker 2: And that's not their job.
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Speaker 1: And in a lot of these D.C. cases, you see
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Speaker 1: this sort of growing mistrust of the executive branch and
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Speaker 1: whether they can believe what the government lawyers are telling them.
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Speaker 1: In the golf course case, the government lawyer said in
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Speaker 1: court that there were no final plans. To build the
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Speaker 1: golf course, to renovate the golf course. But then President
9:44
Speaker 1: Trump in a social media post said it's going ahead immediately. Yeah.
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Speaker 1: And Judge Reyes said they'd lost credibility. And Judge Tanya Chukin,
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Speaker 1: who's handling the Arch case, said the lawyers come in
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Speaker 1: and say, I don't know. I'm not aware of anything,
10:01
Speaker 1: but that doesn't mean it's not happening.
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Speaker 2: You really put your finger on what I think is
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Speaker 2: perhaps the most significant thing here. And I don't want
10:08
Speaker 2: to minimize the attacks on the judges or their having
10:11
Speaker 2: to deal with the threats and their having to deal
10:13
Speaker 2: with their families being exposed to this kind of stuff.
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Speaker 2: I mean, I think that's incredibly serious. But I think
10:18
Speaker 2: on a systemic level, level. The most serious thing is
10:21
Speaker 2: that I think the federal judiciary around the country is
10:23
Speaker 2: really starting to lose trust in the Department of Justice. Now,
10:26
Speaker 2: you know, there's a concept called the presumption of regularity,
10:29
Speaker 2: that when DOJ comes into court and says, Judge, this
10:32
Speaker 2: is what's what, and this is what we're doing, there's
10:33
Speaker 2: a presumption that they're doing their jobs in a regular way,
10:37
Speaker 2: that whether you agree with them or not, you can
10:38
Speaker 2: trust that they're telling you something that's truthful. I was
10:41
Speaker 2: a judge, as I said, for 37 years. For 20
10:44
Speaker 2: of those years, I was a federal judge. And I
10:46
Speaker 2: dealt with the DOJ on a pretty regular basis. And
10:49
Speaker 2: I can think of any number of situations where I
10:52
Speaker 2: didn't agree with them about something. They took a legal
10:53
Speaker 2: position I didn't like, or they took a sentencing position
10:56
Speaker 2: I didn't like, or there were things we could disagree about.
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Speaker 2: I don't remember a time that I didn't trust them,
11:01
Speaker 2: where I thought somebody was telling me something that wasn't true.
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Speaker 2: Or that somebody was telling me something for an improper motive,
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Speaker 2: that they were doing something that was outside the scope
11:09
Speaker 2: of their mission as prosecutors or as representatives of the
11:12
Speaker 2: government in civil cases. And I think that's been the
11:14
Speaker 2: experience of judges of my vintage around the country, that
11:18
Speaker 2: one thing you can count on is that the DOJ
11:20
Speaker 2: lawyers are going to be ethical. And that's not presumed anymore.
11:23
Speaker 2: And then you have examples like this that I think
11:25
Speaker 2: really are kind of shaking that faith. And I think
11:27
Speaker 2: that is a serious problem if you think about it,
11:29
Speaker 2: because these people have the power of the state. They
11:32
Speaker 2: represent the government. They are the agents through which the
11:35
Speaker 2: government does so many things in the legal arena. And
11:38
Speaker 2: you really have to be able to trust them. You
11:40
Speaker 2: don't have to agree with them, but you have to
11:41
Speaker 2: be able to trust them. And I think that's the
11:43
Speaker 2: larger narrative here.
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Speaker 1: So what can judges do if they don't feel they
11:47
Speaker 1: can trust what the government lawyers are saying? I mean,
11:51
Speaker 1: should they get them to sign affidavits for everything?
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Speaker 2: They don't need to do that because when a lawyer
11:58
Speaker 2: stands up in court and makes a representation that something
12:01
Speaker 2: is a fact, and if they do so knowing that
12:03
Speaker 2: that's not a fact, that's wrong. It's a violation of
12:07
Speaker 2: their ethical responsibilities. They can be held in contempt by
12:10
Speaker 2: the court. They can be referred for discipline by the
12:12
Speaker 2: local bar association that licensed them. Lawyers have a duty
12:15
Speaker 2: of candor, and it doesn't mean they can't be vigorous advocates.
12:18
Speaker 2: In fact, they're supposed to be vigorous advocates, but they're
12:20
Speaker 2: also supposed to be candid. They're supposed to tell the
12:23
Speaker 2: court the truth. So I don't know that they need
12:25
Speaker 2: to sign anything. I think if you asked them to
12:28
Speaker 2: do that, you know, that would just make it more difficult.
12:31
Speaker 2: even more compelling. You know, this is a document you signed, counsel,
12:34
Speaker 2: you know, but I don't think that level of formality
12:37
Speaker 2: is really required.
12:38
Speaker 1: And after Judge Reyes chastised the government lawyers, they asked
12:42
Speaker 1: her to recuse herself, which she refused to do. So,
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Speaker 1: I mean, it's not that they're saying, you know, we're sorry,
12:48
Speaker 1: we should have given you more notice, blah, blah, blah,
12:51
Speaker 1: we shouldn't have cut down the trees. They're saying, No,
12:54
Speaker 1: we want you off this case because you're biased against us.
12:57
Speaker 2: Yeah, because you yelled at us, basically. See, this is
13:00
Speaker 2: what I mean about it's a diversionary tactic. You know,
13:03
Speaker 2: the cases, as you were just describing, I mean, there
13:05
Speaker 2: was an order made. The order, at least arguably, was violated.
13:08
Speaker 2: She said no major actions. They represented that no major
13:11
Speaker 2: actions were going to be taken. Then they cut down
13:13
Speaker 2: hundreds of trees. Well, so that's a problem, right? That's
13:16
Speaker 2: what got her mad. And you can say, well, she
13:19
Speaker 2: probably can look back on it and say, it would
13:21
Speaker 2: have been nice if I had regulated my voice a
13:24
Speaker 2: little bit. But that has nothing to do with the
13:26
Speaker 2: legal merits of the case. It has nothing to do
13:28
Speaker 2: with the correctness of the order she made or its incorrectness.
13:30
Speaker 2: And so what they've done is they've made her the issue,
13:34
Speaker 2: which is which is tremendously unfair to her, and it's
13:37
Speaker 2: misleading to the public as to what the case is about.
13:40
Speaker 2: You know, if she had made an order out of
13:42
Speaker 2: the blue that didn't have any evidentiary basis, it was
13:44
Speaker 2: outside of her powers, it was just, you know, a
13:46
Speaker 2: judge being high-handed and doing things that she didn't have
13:49
Speaker 2: the power to do, that's different. I mean, that's something
13:52
Speaker 2: that you might want to recuse a judge who exhibited
13:54
Speaker 2: that kind of behavior. But that's not what happened. I mean,
13:57
Speaker 2: it just isn't what happened, and it's really unfair to
13:59
Speaker 2: Judge Reyes to characterize what happened that way.
14:01
Speaker 1: Coming up next, we'll talk about those recusal motions. This
14:05
Speaker 1: is Bloomberg. Let's turn to Minnesota, where the federal courts
14:09
Speaker 1: have had a lot of run-ins with the Justice Department
14:13
Speaker 1: in immigration cases. Now, the Justice Department is demanding that
14:18
Speaker 1: two Minnesota federal judges be recused from ongoing immigration cases
14:24
Speaker 1: after giving recent interviews to the New York Times. Last month,
14:28
Speaker 1: the Justice Department had already accused the judges of misconduct
14:33
Speaker 1: in a complaint to the chief judge of the Court
14:35
Speaker 1: of Appeals for the Eighth Circuit. I've been talking to
14:38
Speaker 1: Judge Jeremy Fogel, who sat on the U.S. District Court
14:42
Speaker 1: for the Northern District of California, about the increasingly contentious
14:46
Speaker 1: relationship between the Justice Department and the federal judiciary. They
14:51
Speaker 1: seem to be trying to turn the tables, so they filed...
14:54
Speaker 1: For example, the judicial misconduct complaint against seven federal judges
14:59
Speaker 1: in Minnesota claiming that they violated ethics. I mean, they
15:04
Speaker 1: did this also before in Maryland, I think. They tried that.
15:07
Speaker 2: Well, they did that in Maryland. For a different reason.
15:09
Speaker 2: There was a rule of court that the District of
15:12
Speaker 2: Maryland adopted saying don't deport anybody on an immigration case
15:16
Speaker 2: without giving us 48 hours to look at the habeas
15:19
Speaker 2: corpus petition that the person being deported filed. So it
15:22
Speaker 2: was really giving the court a chance to do its job,
15:24
Speaker 2: and 48 hours is really not a long time, especially
15:27
Speaker 2: if it involves a weekend or something like that. And
15:30
Speaker 2: the Department of Justice sued all the judges personally in
15:33
Speaker 2: federal court saying that they didn't have the power to
15:35
Speaker 2: do that. They had a remedy. They could have gone
15:37
Speaker 2: directly to the Fourth Circuit. The Fourth Circuit has a
15:40
Speaker 2: procedure for challenging local rules of court. They could have
15:43
Speaker 2: asked the court for a hearing on whether the rule
15:45
Speaker 2: of court was properly adopted. But instead, they sued all
15:48
Speaker 2: the judges personally. And the judge to whom the case
15:50
Speaker 2: was assigned... who was a judge out of Maryland, obviously.
15:53
Speaker 2: He was another judge in the Fourth Circuit. He said, essentially,
15:55
Speaker 2: the complaint was frivolous. You know, they had a remedy
15:58
Speaker 2: and they didn't use it. They went after the judges personally.
16:01
Speaker 2: So what happened in Minnesota was a little bit different.
16:03
Speaker 2: It also involved immigration. There was a surge that ICE
16:07
Speaker 2: initiated in Minnesota during the winter, last winter. And there
16:11
Speaker 2: were lots and lots of arrests and lots of people
16:12
Speaker 2: getting deported. And there were lots of habeas corpus petitions
16:15
Speaker 2: that were filed in the And the chief judge at
16:19
Speaker 2: the time, his name is Patrick Schultz, detailed close to
16:23
Speaker 2: 100 cases where he and his colleagues believed that orders
16:27
Speaker 2: were made and not complied with, that they could document
16:30
Speaker 2: that volume of noncompliance. They felt that the effect of
16:34
Speaker 2: that was that it really completely threw a monkey wrench
16:37
Speaker 2: in the gears of the court. They couldn't get their
16:38
Speaker 2: work done. They couldn't handle their other cases. It just
16:41
Speaker 2: put an intolerable burden on the judges because there was
16:44
Speaker 2: no regular order. I mean, the orders were just not
16:45
Speaker 2: being followed. And, you know, there's a lot of community
16:49
Speaker 2: unrest going on at the time. You know, people were
16:51
Speaker 2: protesting the surge and courts inability to do anything about
16:55
Speaker 2: it because of this disruption. It just made matters worse.
16:58
Speaker 2: You know, there were much more intense atmosphere. So he
17:01
Speaker 2: and his colleagues called this out. I mean, they went
17:04
Speaker 2: to The New York Times and they said, this is
17:06
Speaker 2: what happened. And we're not commenting on any of these cases,
17:09
Speaker 2: whether they were good, bad, or indifferent, whether any of
17:11
Speaker 2: these people did or did not deserve to be deported
17:14
Speaker 2: or any of these habeas corpus petitions had merit or not.
17:16
Speaker 2: It was just that the pattern of noncompliance or partial
17:19
Speaker 2: compliance or delayed compliance gummed up the rule of law
17:23
Speaker 2: to an extent that we thought it was really kind
17:25
Speaker 2: of critical and we needed to make some comment about it.
17:27
Speaker 2: So that's what they did. And I just want to say,
17:29
Speaker 2: and it shouldn't matter that I have to say this,
17:31
Speaker 2: but I just think to put it in context, you're
17:34
Speaker 2: talking about a judge who probably in terms of his
17:36
Speaker 2: particular case background and outlook as the polar opposite of Reyes.
17:40
Speaker 2: He's a white man. He was a clerk for Justice Scalia.
17:43
Speaker 2: He was very conservative. He used to teach at Notre Dame.
17:46
Speaker 2: One of his prized pupils was Justice Barrett. This is
17:49
Speaker 2: a guy who, from a philosophical standpoint, you know, is
17:51
Speaker 2: really seen as one of the stronger and more impressive
17:54
Speaker 2: conservative voices in the country in the federal judiciary. And
17:58
Speaker 2: he was the guy who made the statement along with
18:01
Speaker 2: some of his colleagues and didn't make any difference. I mean,
18:03
Speaker 2: he got vilified. He got called a Radical and, you know,
18:07
Speaker 2: out of control. And then the judicial misconduct complaint got
18:11
Speaker 2: filed against them with the 8th Circuit. The defense that
18:14
Speaker 2: they had, and he said this actually when they spoke
18:16
Speaker 2: to the newspaper, was we're not commenting on cases. Judges
18:19
Speaker 2: can't comment on cases. We're not commenting on whether the
18:22
Speaker 2: administration's immigration policies are correct or not. We're not making
18:26
Speaker 2: that comment either. We're just talking about what happened to
18:28
Speaker 2: our court during this period of time. And we just
18:30
Speaker 2: thought it was important that we say something about it.
18:33
Speaker 2: And I don't think there's anything wrong with that. Every
18:37
Speaker 2: judicial ethics expert that I interact with, we have kind
18:40
Speaker 2: of a little club of ethics geeks and we talk
18:42
Speaker 2: to each other all the time. And none of us
18:44
Speaker 2: think that there was any misconduct here. You know, you
18:47
Speaker 2: could say, well, was it the best exercise of judgment
18:50
Speaker 2: to do this in this particular way? I have no
18:52
Speaker 2: comment on that. But there's no question in my mind
18:55
Speaker 2: that there was not an ethics violation. It was totally
18:58
Speaker 2: within their rights under the Code of Conduct as it
19:01
Speaker 2: reads and under the Advisory guidance has been issued by
19:04
Speaker 2: the Judicial Conference of the United States since then. So
19:07
Speaker 2: then what's this about? Why did they file the complaint?
19:10
Speaker 2: I think they filed the complaint because they wanted to
19:12
Speaker 2: make an example of these judges. It was kind of
19:13
Speaker 2: the same reason, I think, that they sued people individually
19:16
Speaker 2: in Maryland rather than taking the administrative route to the
19:19
Speaker 2: Fourth Circuit. Its intimidation effect, I think, is intended. I
19:23
Speaker 2: think that's very regrettable. I don't think it's right.
19:26
Speaker 1: It sort of goes along with what now Attorney General
19:29
Speaker 1: Todd Blanch has said a while back that we're at
19:32
Speaker 1: war with federal judges. It seems like they're taking a
19:35
Speaker 1: confrontational approach.
19:37
Speaker 2: No, I think that's right. And I always try, I've
19:40
Speaker 2: learned to do this my whole life, to try to
19:42
Speaker 2: see things from the other side. And I think they
19:45
Speaker 2: feel that the president's trying to do these things. They
19:48
Speaker 2: are trying to do these things to bring the country
19:50
Speaker 2: around to the way they want it to be, and
19:52
Speaker 2: particularly in the area of immigration enforcement. And they see
19:56
Speaker 2: the federal courts as getting in the way. And they
19:58
Speaker 2: feel like they have to take a muscular approach to
20:01
Speaker 2: efforts that they see as being interference by the federal
20:03
Speaker 2: courts in that approach. I can buy that up to
20:06
Speaker 2: a point where, you know, the legal arguments you make
20:08
Speaker 2: can be assertive. You can try to get the most
20:11
Speaker 2: out of the law that exists and push it as
20:12
Speaker 2: far as you can do in an ethical manner. There's
20:15
Speaker 2: nothing wrong with that. I mean, they want to be
20:17
Speaker 2: zealous advocates for that point of view, you know, a
20:19
Speaker 2: hard line on immigration law enforcement. They have a right
20:22
Speaker 2: to do that. I mean, the president largely campaigned on that.
20:25
Speaker 2: So I get that. But they don't get to ignore
20:28
Speaker 2: the rules. They don't get to ignore court orders. And
20:32
Speaker 2: in my opinion, they don't get to launch ad hominem
20:35
Speaker 2: attacks on judges. I know Judge Schultz a little bit,
20:37
Speaker 2: and I know what kind of guy he is. And
20:38
Speaker 2: it was just so interesting to read the administration's attacks
20:41
Speaker 2: on him, that he was kind of a wild-eyed left-wing activist.
20:45
Speaker 2: And I just sort of thought, have you ever met
20:46
Speaker 2: this guy? I mean, not only is it not true,
20:49
Speaker 2: but it's kind of laughable when you think about it.
20:51
Speaker 2: He's very close with Justice Kavanaugh. They played basketball together.
20:55
Speaker 2: He was the chief judge of the intelligence court. I mean,
20:58
Speaker 2: this is not a wildlife radical either. It's a very
21:00
Speaker 2: kind of mainstream guy, you know, and it doesn't matter.
21:03
Speaker 2: I mean, it's kind of fact-free criticism.
21:06
Speaker 1: Well, I really appreciate getting the insights of someone who
21:10
Speaker 1: was on the bench for so long. Thanks so much, Judge.
21:14
Speaker 1: That's former Judge Jeremy Fogle of the United States District
21:17
Speaker 1: Court for the Northern District of California. Politically appointed Justice
21:22
Speaker 1: Department lawyers have submitted more than a dozen court filings
21:27
Speaker 1: in federal trial and appeals courts that haven't been signed
21:30
Speaker 1: by any career attorneys, a move former department officials say
21:35
Speaker 1: is unusual. The increased involvement of attorneys in the Justice
21:39
Speaker 1: Department's so-called front office in major litigation represents a departure
21:44
Speaker 1: from prior administrations. The change comes as the Justice Department
21:49
Speaker 1: faces higher attrition of its career workforce and advances arguments
21:54
Speaker 1: expanding executive power. Joining me is Bloomberg Law reporter Suzanne Moniak,
22:00
Speaker 1: who's written about this. Tell us about the exodus of
22:04
Speaker 1: career lawyers since, you know, Trump returned to the White
22:08
Speaker 1: House and the uptick in political appointees.
22:12
Speaker 4: In the last year and a half, we've seen a
22:14
Speaker 4: significant amount of attrition of the career workforce really across
22:17
Speaker 4: the government, but we've really also seen it at the
22:19
Speaker 4: Department of Justice. There have been a lot of concerns
22:21
Speaker 4: that the department isn't as independent as it used to be,
22:23
Speaker 4: that it's pursuing more political causes that are personal to
22:27
Speaker 4: the president. And between that and a lot of other
22:30
Speaker 4: forced workforce cuts, we've saw a lot.
22:33
Speaker 3: Of career veteran attorneys leave the department.
22:35
Speaker 4: Because career hiring is more of a challenge, both bureaucratically
22:39
Speaker 4: and just in terms of enticing some of those people
22:42
Speaker 4: with those backgrounds to come into this administration. We've seen
22:44
Speaker 4: a growth in the Justice Department's so-called front office, which
22:48
Speaker 4: is where they house political lawyers, as well as some
22:51
Speaker 4: career lawyers who are temporarily detailed there. Those people are easier,
22:55
Speaker 4: quicker to hire, and may in some cases be more
22:57
Speaker 4: willing to pursue more political arguments.
23:00
Speaker 1: Before the Trump administration, what was the usual role of
23:04
Speaker 1: political appointees in the Justice Department?
23:07
Speaker 4: To be sure, political appointees at DOJ were not uninvolved
23:11
Speaker 4: in cases. We saw political lawyers may sometimes present arguments
23:15
Speaker 4: in court cases and big cases that may be of
23:18
Speaker 4: particular priorities to this administration. We may see them present
23:22
Speaker 4: cases just maybe because they want the experience of doing
23:25
Speaker 4: an argument as a younger lawyer. And of course, we
23:27
Speaker 4: will always see political appointees' names listed above the signature
23:31
Speaker 4: block and briefs. But we generally wouldn't have them. From
23:34
Speaker 4: speaking with former Justice Department lawyers, they tell me that
23:37
Speaker 4: it's atypical for political appointees to be fully the ones
23:40
Speaker 4: drafting multiple briefs in major cases, that usually the nonpartisan
23:46
Speaker 4: career lawyers would have a bigger role in that.
23:48
Speaker 1: And politically appointed Justice Department lawyers have submitted more than
23:52
Speaker 1: a dozen court filings in federal trial and appeals courts
23:57
Speaker 1: that haven't been signed by any of the career attorneys.
24:01
Speaker 1: And In the golf course case, Judge Reyes brought this up.
24:06
Speaker 3: That's right.
24:07
Speaker 4: We've seen a little bit of an uptick in court filings,
24:09
Speaker 4: really in cases across the board, where there are no
24:12
Speaker 4: nonpartisan career lawyers signed on. That may be for a
24:15
Speaker 4: number of reasons. But we had seen one in this
24:18
Speaker 4: golf course case that you mentioned, challenging President Donald Trump's
24:22
Speaker 4: potential changes to a historic public golf course here in D.C.
24:26
Speaker 4: And Judge Honoré, as who's overseeing that case, specifically called
24:29
Speaker 4: it out and actually in the courtroom, turned to counsel's
24:31
Speaker 4: table and addressed the lawyers and said, please raise your
24:34
Speaker 4: hand if you'd be willing to sign this brief, which
24:37
Speaker 4: had only been signed by Stanley Woodward, who is the
24:40
Speaker 4: associate attorney general.
24:41
Speaker 3: That's the third ranking official of the department.
24:43
Speaker 4: Fairly unusual to have someone so high up be the
24:46
Speaker 4: one submitting briefs without the backing of career lawyers. It
24:50
Speaker 4: was a very tense moment in the courtroom. Stanley Woodward
24:53
Speaker 4: had signed the brief immediately pushed back and then actually
24:56
Speaker 4: directed his attorneys not to respond to the judge, not
24:59
Speaker 4: to do it. The judge then turned to them and said,
25:01
Speaker 4: this is a direct order. Ultimately, the judge decided not
25:04
Speaker 4: to pursue that. There was a moment where she said
25:06
Speaker 4: that they could brief it. And then at the end
25:08
Speaker 4: of the hearing, she came back and said, after speaking
25:10
Speaker 4: with my clerks, I've decided to withdraw this request. It
25:13
Speaker 4: was a very tense moment that really does show that
25:16
Speaker 4: we are seeing judges taking notice of the increased role
25:19
Speaker 4: that political lawyers are playing in court.
25:21
Speaker 1: What are the possible reasons why a career attorney might
25:26
Speaker 1: not want to sign on to a brief?
25:29
Speaker 4: When speaking with lawyers for this story, it was suggested
25:32
Speaker 4: to me by one person familiar with the situation that
25:36
Speaker 4: perhaps it wasn't that the career lawyers are saying that
25:38
Speaker 4: they don't want to sign a brief, but rather that
25:40
Speaker 4: the politicals are kind of preemptively shielding them. And that
25:44
Speaker 4: may or may not be the case, at least in
25:46
Speaker 4: some instances. Generally speaking, I think it is rare for
25:50
Speaker 4: a career lawyer to not want to sign a brief.
25:52
Speaker 4: Part of their job in the government is to, you know,
25:55
Speaker 4: sometimes take positions that may not align with their own
25:57
Speaker 4: personal politics. That's why they're nonpartisan attorneys whose tenures at
26:01
Speaker 4: the department tend to span multiple administrations. But one instance
26:05
Speaker 4: in which we might see political sign a brief might
26:07
Speaker 4: be for more, quote unquote, controversial arguments.
26:10
Speaker 1: You said that in your piece that sometimes these briefs
26:15
Speaker 1: that are signed only by the political appointees have a
26:18
Speaker 1: different tone than other government filings. So explain that tone.
26:23
Speaker 4: In a couple of instances, we've seen a less professional
26:27
Speaker 4: government sounding tone coming from the Justice Department in these briefs.
26:31
Speaker 4: I think the most maybe relevant example for this was
26:34
Speaker 4: in the White House ballroom case where we saw a
26:37
Speaker 4: DOJ political lawyer-led brief accuse the nonprofit historic preservation group
26:42
Speaker 4: that had been challenging the White House ballroom changes in
26:45
Speaker 4: the case of having Trump derangement syndrome. And the brief
26:48
Speaker 4: itself really read in a similar tone to what we
26:51
Speaker 4: see from President Donald Trump on Truth Social or other
26:53
Speaker 4: social media posts. And that's just a very atypical tone
26:56
Speaker 4: for a government brief. Usually they would read boring.
27:00
Speaker 1: We talked about the golf course case where the third
27:04
Speaker 1: highest official, Stanley Woodward, was arguing in the courtroom. And
27:08
Speaker 1: are you seeing more instances of political lawyers appearing in
27:12
Speaker 1: court as well?
27:13
Speaker 4: While we haven't done a full statistical analysis, anecdotally, it
27:16
Speaker 4: does look that way, that we're seeing this happening so
27:19
Speaker 4: often in different kinds of cases.
27:20
Speaker 3: We've seen it in the ballroom case. We've seen it in.
27:24
Speaker 4: The case over the Kennedy Center, as well as in
27:27
Speaker 4: a number of cases over the Trump administration's mandatory detention
27:31
Speaker 4: policy for immigrants.
27:33
Speaker 3: So we've just seen it in a number of issues.
27:35
Speaker 4: And lawyers I spoke to said that they had also
27:37
Speaker 4: noticed an uptick in the number of arguments done by politicals.
27:40
Speaker 4: And of course, there's been an uptick in the volume
27:41
Speaker 4: of litigation in general as.
27:43
Speaker 1: The former Justice Department lawyers you spoke to, I mean,
27:46
Speaker 1: does this concern them that there's this uptick in, you know,
27:50
Speaker 1: action in the courtroom and on briefs by political appointees?
27:56
Speaker 4: Yes, a number of them raise concerns about this phenomena
27:59
Speaker 4: as potentially indicative of further erosion of independence of the judiciary.
28:04
Speaker 4: I think they maybe largely felt that it undermines the
28:07
Speaker 4: credibility of arguments that the Justice Department is making. if
28:10
Speaker 4: there are no career attorneys signed on, maybe regardless of
28:13
Speaker 4: whether or not there was some involvement by career attorneys
28:16
Speaker 4: behind the scenes, or maybe it's not that they refused
28:18
Speaker 4: to sign, but just that the front office is taking
28:20
Speaker 4: the lead on a more controversial issue. Regardless, I think
28:24
Speaker 4: I did get the sense from speaking to people that
28:26
Speaker 4: that was kind of the overarching concern. And that was
28:28
Speaker 4: something that Judge Reyes actually explicitly raised in that hearing
28:32
Speaker 4: during that tense exchange where she said herself that she
28:35
Speaker 4: saw that as having less credibility when there are no
28:37
Speaker 4: career lawyers on it.
28:38
Speaker 3: And that's why she was concerned about it.
28:40
Speaker 1: You also wrote about Judge Reyes. I didn't realize she
28:43
Speaker 1: had such an interesting backstory. Tell us a little bit
28:47
Speaker 1: about Judge Reyes.
28:48
Speaker 4: Judge Reyes is a Joe Biden appointee who's been on
28:50
Speaker 4: the court for about three and a half years now.
28:53
Speaker 4: And she's very much known for her very direct style
28:56
Speaker 4: and approach in court. What we saw from her in
28:59
Speaker 4: this golf course case is not necessarily out of character
29:02
Speaker 4: for her in that she is somebody who I think
29:05
Speaker 4: does not tolerate people who show up say, unprepared to
29:09
Speaker 4: court or making inconsistent statements in court. One of her
29:12
Speaker 4: former colleagues, Ab Williams and Connolly, now a UVA law professor,
29:15
Speaker 4: had said to me specifically that she's someone who doesn't
29:17
Speaker 4: want to waste time.
29:19
Speaker 3: She wants to be efficient with cases.
29:21
Speaker 4: And I think that's something we've seen in past cases
29:22
Speaker 4: where she's been annoyed at lawyers for what she sees
29:25
Speaker 4: as unproductive lawyering at the incredibly high billing rate to
29:29
Speaker 4: their client. So she's just very no-nonsense, no-fuss, and is
29:34
Speaker 4: somebody who is not going to tolerate a situation where
29:36
Speaker 4: the government says one thing and does another.
29:38
Speaker 3: She wants to get to the bottom.
29:39
Speaker 1: Of it. And she has some firsts next to her name.
29:43
Speaker 4: She's the first female Hispanic and first openly gay judge
29:47
Speaker 4: at Washington's federal district court.
29:50
Speaker 1: I thought it was cute. She keeps an arcade machine
29:53
Speaker 1: in her office?
29:54
Speaker 2: Yes.
29:55
Speaker 3: That's right. In her chambers can play Pac-Man.
29:58
Speaker 4: She made a reference to it during a hearing earlier
30:01
Speaker 4: this month that an official who was testifying and had
30:03
Speaker 4: to step out of the room for, you know, while
30:05
Speaker 4: others testified, joked that he could play on her arcade
30:08
Speaker 4: machine in her chambers.
30:09
Speaker 1: So this isn't the first time the golf course case
30:13
Speaker 1: isn't the first time that she's handled a high profile case.
30:17
Speaker 1: She ruled in the transgender military ban case.
30:23
Speaker 3: That's right.
30:23
Speaker 4: Two of the cases where she ruled against the Trump
30:26
Speaker 4: administration on pretty major policies were on the policy to
30:29
Speaker 4: ban transgender service members from serving in the military.
30:33
Speaker 3: She ruled against that.
30:34
Speaker 4: She also ruled against the administration's effort to terminate temporary
30:38
Speaker 4: protected status, which are temporary immigration protections for Haitians.
30:42
Speaker 3: That one was ultimately reversed by the U.S. Supreme Court.
30:45
Speaker 4: Additionally, she had the criminal case for Charles Littlejohn, who, uh,
30:50
Speaker 4: pleaded guilty to leaking Donald Trump's tax information to The
30:54
Speaker 4: New York Times. And in that case, she gave him
30:56
Speaker 4: the maximum sentence and saw what he'd done to Trump
30:59
Speaker 4: as a problem for democracy.
31:01
Speaker 1: Has she been attacked by the Trump administration then before
31:04
Speaker 1: the golf course case?
31:06
Speaker 4: Yes, this is not her first time in their crosshairs.
31:10
Speaker 4: She also faced a DOJ-led misconduct complaint for a comment
31:14
Speaker 4: she made in the transgender military case. They felt that
31:17
Speaker 4: she was improperly questioning the Justice Department lawyer with some
31:21
Speaker 4: tough interrogations.
31:23
Speaker 1: This Justice Department really has set up an antagonistic relationship
31:27
Speaker 1: with federal judges. A really interesting story and great reporting, Suzanne.
31:32
Speaker 1: Thanks so much. That's Bloomberg Law Reporter Suzanne Moniak. And
31:36
Speaker 1: that's it for this edition of the Bloomberg Law Show. Remember,
31:39
Speaker 1: you can always get the latest legal news on our
31:41
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31:46
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31:55
Speaker 1: Wall Street time. I'm June Grosso, and you're listening to Bloomberg.