DOJ Lawyers’ Courtroom Lies Challenge Judiciary, Ex-Judges Say

Former federal judges are lamenting a new challenge their colleagues on the bench face: government lawyers making false statements in court.

Federal prosecutors and lawyers “are lying to the federal courts,” and President Donald Trump and top officials are “trashing individual judges,” retired Judge J. Michael Luttig, a George H. W. Bush appointee to the US Court of Appeals for the Fourth Circuit, said at a Wednesday event in Washington.

In some cases, “you are wondering whether or not the information being given by the component of the action is accurate, and you’re asking for details to follow up, and getting gibberish,” said former Judge Paul Grimm, director of Duke Law School’s Bolch Judicial Institute.

The judges made their remarks at a panel hosted by the Society for the Rule of Law, a conservative legal group that’s been critical of Trump’s policies.

A study published this month by nonpartisan legal journal Just Security found over 40 cases where federal courts have found “serious defects” in the government’s representations in court, including false statements and contradictions.

They’ve prompted scathing rebukes from judges across the US . One federal judge in California wrote last month that the “‘administrative record’ submitted by the government is a sham.” Another federal judge in Washington wrote earlier this year that the “contradiction” between government’s “factual representations and the facts on the ground is particularly striking.”

The presumption of regularity—a judicial doctrine that assumes the government is acting properly in court—is gone, said retired Judge Nancy Gertner, who previously sat on the Boston federal trial court.

“How are we, as an individual district court judge, to understand a search warrant, for example? Are you you going to assume that it went through the usual layers of review in the Department of Justice, or are we going to assume that Trump ordered X to do it?” said Gertner, who is now a Harvard Law School lecturer. “Courts are grappling with that right now.”

Several also raised concerns about judges’ workloads and the pressure they face to decide high-profile cases in the face of minimal Supreme Court guidance.

The high court has come under scrutiny for brief orders issued on its emergency docket that reverse or back lower court decisions on major national policies, without providing any reasoning.

The use of the emergency docket has also frustrated trial judges who must issue decisions without understanding why the justices ruled how they did, Grimm said Wednesday.

That frustration has been borne out in written decisions. In August, Justice Justice Neil Gorsuch wrote in a concurring opinion to an order reversing a lower court order that lower court judges shouldn’t “defy” the Supreme Court. The admonishment prompted a current Boston federal judge to say the message was “unhelpful and unnecessary” for judges navigating a difficult legal environment.

These lower court judges “are doing their best under extraordinary circumstances,” Grimm said. “There’s a frustration here, because they’re not trying to disregard precedent.”