Words & Phrases

‘Trust’ takes a holiday

After dozens of cases in which Department of Justice lawyers made misrepresentations to courts, defied orders, and defended arbitrary and capricious actions (and tens of thousands of instances in which courts knocked down DOJ lawyers’ defense of illegal ICE detentions), DOJ has worn out its welcome in federal courts. Long gone are the days in which courts, juries, and the public could trust the word of DOJ lawyers.

The DOJ’s statement of values includes this whopper: “We work each day to earn the public’s trust by following the facts and the law wherever they may lead, without prejudice or improper influence.” That no longer passes the straight-face test.

Trust? You people want me to trust you?! That was the tenor of a blistering opinion from U.S. District Court Judge Mary S. McElroy for the district of Rhode Island in quashing the Trump regime’s subpoena for documents relating to minors’ gender-affirming care. She did not buy DOJ lawyers’ argument that it needed such records for a “fraud” audit.

You can understand her frustration:

DOJ has proven unworthy of this trust at every point in this case. It has misrepresented and withheld information to both this Court and the United States District Court for the Northern District of Texas (the “Texas court”). It did so in an obvious effort to shield its recent investigative tactics—previously rejected by every other court to review them—from this Court’s review, in favor of a distant forum that DOJ deems friendly to its political positions. Its representatives have, under oath, misrepresented salient facts. It has misled the parties with whom it was negotiating in Rhode Island, who have now been placed in an untenable and unprecedented procedural position. And when its attorneys came to this Court to explain their conduct, the senior attorney—who was present at many of the events that took place in this case—sat silently by as his counterpart, a junior attorney who has been practicing law for approximately six months and had no relevant information, was forced to answer questions about DOJ’s blatant disregard for the proper course of negotiations.

In addition to all that, McElroy revealed that the entire theory of DOJ’s investigation was a ruse. The ostensible purpose of the subpoena — to facilitate the investigation of fraud in “off-label” prescriptions — makes no sense, McElroy pointed out, because “off-label prescribing by physicians is lawful.” She explained, “[I]t is therefore logically impossible to construct an aiding-and-abetting, facilitation, or conspiracy theory predicated on nothing more than the physician’s own lawful prescribing act.”

McElroy flatly declared DOJ had operated in bad faith, simply to harass patients. “The evidence of improper purpose here is in the DOJ’s own public record and detailed in the decisions of the seven other federal courts that have considered identical subpoenas,” she wrote. “The Administration has publicly characterized gender affirming care for minors as abuse, directed the DOJ to bring its practice to an end, and celebrated when hospitals curtailed such programs as a result of this subpoena campaign.”

Bad faith. Untrustworthy. As we have written, this regime long ago forfeited the “presumption of regularity” normally extended to the government. McElroy agreed:

[T]he discrepancy between the honorable conduct expected of federal prosecutors and DOJ’s tactics in this case is unsettling. The Court cannot help but share the sentiment that “[t]he presumption of regularity that has previously been extended to [DOJ] that it could be taken at its word — with little doubt about its intentions and stated purposes — no longer holds.”

McElroy is no outlier. Scenes of exasperated judges berating unethical, sloppy, and/or blatantly deceptive DOJ conduct have played out around the country.

In a massive survey of 327 judges, “elite” lawyers, and law professors, Bright Line Watch and the Safeguarding Democracy Project found that: “Eight in ten legal experts report that federal officials fail to comply with court orders somewhat or very often, and nearly nine in ten say political appointees in the Trump DOJ mislead federal judges somewhat or very often.”

Juries have picked up on the department’s untrustworthiness as well, refusing to indict an unprecedented number of defendants (e.g., Letitia James, the sandwich thrower, anti-ICE protesters, military veterans serving in Congress). DOJ cannot persuade ordinary citizens to pursue Trump’s enemies even when no defense lawyer or defendant is present.

It does not help the department’s reputation when it flagrantly violates the Epstein Files Transparency Act by withholding documents. It does not “earn the public trust” when it tries to shield its lawyers from state bar disciplinary hearings.

It sure does not inspire trust when there are reasonable questions whether acting Attorney General Todd Blanche, Trump’s former personal lawyer, fully followed ethics officials’ direction to recuse himself from past representation of Trump. As CNN reported, he nevertheless selected conspiracy monger Joe diGenova, a former US attorney, to probe wild accusations of a plot “against Trump spanning from the 2017 Russian election interference probe to the aborted Special Counsel Jack Smith prosecutions,” including the investigation of Trump nemesis, former CIA director John Brennan. Blanche has not recused himself from the Brennan investigation.

One need look no further to confirm the rot at DOJ’s core than the nefarious deal involving DOJ, the IRS, and Trump to “settle” his $10B suit against the IRS for $1.7B. That eye-popping sum of taxpayer money would go to a slush fund under a Trump-controlled commission to “compensate” alleged victims of the Biden administration, including Jan. 6 criminals (whom Trump later pardoned). Good government groups have flagged the scheme as staggeringly corrupt, potentially running afoul of the Emoluments Clause, and exposing any IRS agents who agreed to drop audits to criminal liability.

So, let’s dispense with the notion that the weaponized, rogue department now run by Todd “I love you, sir” Blanche is even trying to earn “the public trust.” In two years, the department has trashed its sterling reputation built over decades.

When Trump leaves office, the new attorney general will need to conduct a thorough housecleaning (and make enumerable referrals for discipline to state bars) to root out Trump’s flunkies who misled courts, defied judges, worked to exact political revenge, and plundered the treasury. Otherwise, the DOJ will never recover the trust of the public, juries, or judges.