The federal judiciary will continue to operate if the federal government shuts down at midnight Dec. 22 but it wouldn’t necessarily operate at full capacity.

The federal government seems headed for a shutdown with Congress and President Donald Trump at an impasse over $5 billion in funding for Trump’s U.S.-Mexico border wall.

The courts “could remain open for about three weeks using fees and no-year appropriations balances,” a spokesperson for the Administrative Office of the U.S. Courts, which manages the federal courts’ operations, told Bloomberg Law.

But it “would not be business as usual,” the spokesperson said.

The federal courts would continue to operate using funds from court filings and other fees, after which only “essential work” would continue.

And during the initial three weeks, the courts would look for ways to save money, deferring travel and training, for example, the AO spokesperson said.

Federal Public Defenders’ offices, which are administered by the judicial branch, would operate under the same conditions as the federal courts, the spokesperson said.

Supreme Court

The U.S. Supreme Court will use its non-appropriated funds to continue its normal operations through the duration of short-term lapses of appropriations, Kathy L. Arberg, the court’s public information officer, told Bloomberg Law.

  • The Supreme Court would remain open to the public.

Justice Department

The threat of a shutdown comes at a time when Special Counsel Robert Meuller’s investigation is underway.

Mueller’s probe into the Russian interference into the 2016 presidential election wouldn’t be affected because it has permanent, indefinite funding, according to a DOJ plan.

  • Other Department of Justice activities will largely continue uninterrupted because its operations involve protection of life and property.
  • U.S. attorneys will continue their activities without interruption.

Essential Work

In a memo on operating during a lapse in funding, the AO defined “essential work” as the “powers exercised under the Constitution, which include activities to support the exercise of Article III judicial powers, specifically the resolution of cases.”

Under the Anti-Deficiency Act, those involved in such work and who wouldn’t be included in a furlough are:

  • Supreme Court justices and Article III judges;
  • Bankruptcy and magistrate judges;
  • Core court staff; and
  • Probation and pretrial services officers whose service is considered essential to the continued resolution of cases.

With assistance from Laura Davison (Bloomberg) and Kimberly Robinson (Bloomberg Law)