194. Another Bad Week for the Presumption of Regularity

Three different flashpoints highlight how much the Trump administration has done, in such short order, to undermine its own litigation efforts and to damage—perhaps irreparably—DOJ's credibility.

Welcome back to “One First,” a (more-than) weekly newsletter that aims to make the U.S. Supreme Court more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support—and I hope that you’ll consider sharing some of what we’re doing with your networks:

Back in January, just three days into the second Trump administration, I wrote a post titled “On the Credibility of the Department of Justice.” The post identified a couple of (very early) signs that the administration was already engaging in behavior that gave reason to worry about whether the federal government would adhere to its long history of turning square corners in the federal courts—and hypothesized some of the ways in which a Department of Justice that lost credibility would not only struggle with relatively straightforward litigation tasks, but would make it far harder, going forward, for courts to defer to government officials even in circumstances in which they should, all at the expense of what’s long been known as the “presumption of regularity.”

Ten months later, that post reads as impressively naive about the depths to which the administration would sink; the outright defiance of at least some lower court orders in which it would engage; and the deep, perhaps irreparable damage its behavior would do to public faith in the integrity (or even the minimal competence) of the Department of Justice. Last week alone, developments in three different cases—the criminal prosecution of former FBI Director James Comey; the ongoing efforts to remove Kilmar Abrego Garcia from the United States; and the civil suit challenging the behavior of federal law enforcement officers in Chicago during Operation Midway Blitz—all provided dramatic, independent evidence of the same broader theme: Whereas the first Trump administration was often characterized as “malevolence tempered by incompetence,” this is worse: it’s malevolence exacerbated by incompetence. That’s problematic enough for the government’s credibility before federal district judges. But at some point soon, one suspects that the Supreme Court itself may well have to grapple with its consequences—or risk being duped.

But first, the (Court-related) news.

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On the Docket

The Merits Docket

It was another relatively quiet week on the merits docket. Last Monday’s Order List added a single case—albeit an important one, with the justices taking up the Trump administration’s request to decide whether the protections of asylum law apply to individuals at ports of entry, or whether they apply only once the putative applicant physically enters the United States. The original issue in the case, Noem v. Al Otro Lado, dates all the way back to the Obama and first Trump administrations—even though the specific “metering” that prompted the lawsuit is no longer taking place. That the Court took the case anyway is almost certainly an ominous sign for the plaintiffs.

The Court also called for the views of the Solicitor General (a “CVSG”) in Nebraska v. Colorado—a water rights dispute falling within the Court’s “original” jurisdiction. As I’ve noted before, the Court has long interpreted that jurisdiction to also be discretionary; the CVSG is, quite transparently, a request to the Department of Justice to share its views on whether or not the Court should exercise that discretion here.

Finally, there was also a single opinion respecting a denial of certiorari—a dissent by Justice Alito, joined by Justice Thomas, in Hutson v. United States, arguing that the Court should have granted certiorari to vacate a district court injunction that had ordered New Orleans to build a new prison for inmates with mental health needs. Even if such an injunction wasn’t precluded by the Prison Litigation Reform Act, Alito argued, the Fifth Circuit put the burden on the wrong party (the prison) to demonstrate why the injunction should be lifted.

The Emergency Docket

Last Thursday’s bonus issue already covered the contretemps over the three-judge district court’s ruling in LULAC v. Abbott, in which a 2-1 majority had blocked Texas’s effort to further redistrict its 38 House seats for the 2026 midterms. As expected, Texas filed an application for emergency relief from that ruling late Friday afternoon and Justice Alito ordered a quick response—with the plaintiffs due to file a brief by 5 p.m. today. (It’s an entirely depressing sign of the times that Texas’s application proudly boasts that the goals of the redistricting were to protect Republican incumbents and create five new Republican seats. One can think severe partisan gerrymandering is not judicially reviewable and still think it’s a scourge.)

What was less expected was the order Alito issued later Friday night—granting an immediate “administrative stay” of the district court’s ruling. Given that the earliest deadline implicated by the district court’s ruling isn’t until December 8, it’s not clear exactly why such immediate relief was necessary—unless the point was to signal to the parties how the full Court is likely to rule (in which case, that’s a … new … use of an administrative stay). Either way, the creep of administrative stays continues.

The only other order from the full Court last week was Thursday’s denial, over no public dissents, of Florida prisoner Richard Randolph’s application for a stay of execution. Florida executed Randolph later Thursday evening.

The Week Ahead

Turning to this week, we expect a full Order List this morning at 9:30 ET. Among other things, I think it is quite likely that the Court will grant certiorari in both of the birthright citizenship cases that were on the Conference list for last Friday. To be clear, that does not mean that they’ll be granted today; the Court’s usual move these days is to relist a case (that is, to hold it over for a second Conference) after the justices vote to hear it—to make sure there are no procedural obstacles or other hidden problems with it. But it wouldn’t shock me if the Court jumped the gun here. (I continue to believe that the Court is going to rule against the Trump administration on the merits in these cases—but a grant seems like a virtual certainty given how much the ability of the Court to reach the merits was an issue when the emergency applications respecting the policy were argued back in May.)

That’s it for what’s scheduled, but it wouldn’t surprise me at all if we also saw movement on one, two, or all three of the significant emergency applications that are pending before the justices—including the Illinois National Guard case (it’s been a week since the last supplemental briefs ordered by the Court were filed); the “is the Library of Congress an executive branch agency” case; and, now, the Texas redistricting case. This week may be Thanksgiving, but the Court’s December argument session begins next Monday, so there may be some pressure (especially in the Texas case) to get something out this week.

Miscellaneous

Finally, I haven’t said much in the newsletter about Justice Barrett’s new book, “Listening to the Law: Reflections on the Court and Constitution.” But I wanted to flag my friend and University of Michigan law professor Leah Litman’s review in the Los Angeles Review of Books, titled “Is Justice Barrett Listening?” I have some real qualms about any of the justices writing books (especially when they’re not writing opinions—but I digress). Leah’s powerful review … doesn’t assuage them.

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The One First “Long Read”:
The Government’s Disappearing Credibility

My friends over at the indispensable Just Security site have put together a stunning and stunningly comprehensive resource on how the “presumption of regularity” has fared in litigation arising out of Trump administration policies (TL;DR: it hasn’t fared well). Their data is staggering, as are many of the individual examples they flag for what they reveal about how the government is conducting itself in litigation—and the price the government keeps paying for its misbehavior.

My goal in today’s post isn’t to comprehensively review these cases; that’s something that the Just Security resource already does far better than I could. Rather, it’s to highlight three specific flashpoints from the last week alone—each of which drive home both how the government is misbehaving and how that misbehavior has directly undermined its ability to achieve its litigation goals.

Case 1: The Comey Indictment

If you haven’t been closely following the developments in the steadily imploding attempt to prosecute former FBI Director Jim Comey for allegedly lying to Congress and attempting to obstruct a congressional investigation, well, they’ve increasingly defied belief. Just to make a long story shorter, in addition to a substantial challenge to the lawfulness of the appointment of Lindsay Halligan as the prosecutor in Comey’s case (a challenge that, if it succeeds, may be fatal to the case given that the statute of limitations has now expired), and one of the stronger vindictive prosecution claims I’ve ever seen, the case has taken two new twists, as well:

First, it appears that Comey is being prosecuted based upon an indictment that was never shown to the grand jury. The issue isn’t the charges; it’s the bizarre bait-and-switch that Halligan and her colleagues for some reason pulled to use a document that reflects only the counts on which the grand jury voted an indictment—and not the original document that included one count on which the grand jury declined to return a true bill. This is an area of law that is notoriously formalistic—to ensure that the i’s are dotted and the t’s are crossed. Here, the prosecutors seem to be hoping that no one notices that there aren’t any i’s in the first place.

And second, there is also now a growing mountain of evidence that Halligan withheld a substantial amount of potentially exculpatory evidence from the grand jury—evidence that may well have negated a probable cause finding even as to the two charges on which an indictment was voted. (It also now seems that there was a declination-of-prosecution memo in Comey’s case the existence of which was apparently ordered to be withheld by … Deputy Attorney General Todd Blanche’s office.)

Over at Lawfare, Ben Wittes reviews the developments and their implications (a tip of the hat is also owed to Ben’s colleague, Anna Bower, who has done remarkable and invaluable reporting on this case). Suffice it to say, the question in the Comey case increasingly is not whether the indictment will be dismissed, but when—and on which of the many available, alternative grounds. It’s one thing for the Department of Justice to so transparently pursue a politically motivated prosecution (while swearing that it is rooting out the weaponization of prosecutorial power). But this one has been beset from the get-go with errors that remotely competent law students wouldn’t make. Indeed, it seems a virtual certainty that the Keystone Kops-like behavior of the relevant government lawyers can be traced directly to the political pressure to bring this case; there’s a reason why no prosecutors with more experience, competence, or integrity were willing to take it on.

Case 2: The Order of Removal in Abrego Garcia

Speaking of the government tripping over itself, the ongoing saga of the Trump administration’s unlawful removal of Kilmar Abrego Garcia; his return; his arrest and criminal indictment; and the government’s new attempt to remove him to some other country to which he doesn’t want to go, has taken two major twists itself—one of which speaks to the government’s incompetence; one to its malevolence.

On the incompetence front, it came out, in a hearing held by Judge Paula Xinis last Thursday, that there may never have been an actual removal order against Abrego Garcia—which should have been the predicate to any of the immigration-related actions the government has taken against him over the past eight-plus months. Although the Justice Department argued that the absence of a formal removal order is just a “technicality,” it’s a pretty significant one given how many of its arguments against Abrego Garcia turn upon statutes foreclosing federal jurisdiction to challenge … final orders of removal. The absence of such an order could therefore clear the way not only for a more aggressive judicial role, but also for claims by Abrego Garcia that might otherwise be foreclosed.

And on the malevolence front, Abrego Garcia has made clear, for some time, that he would be willing to be removed to Costa Rica, as opposed to the latest country identified by the Trump administration—Liberia. Apparently, a deal to that end fell apart earlier this year when Abrego Garcia refused to plead guilty to the (dubious) criminal charges the Trump administration has brought against him in Tennessee in exchange for such an agreement. But whereas the government has made various vague representations about Costa Rica no longer being a viable option, the witness it produced at Thursday’s hearing was unable to explain why that was true—and Costa Rica’s Security Minister, Mario Zamora Cordero, told The Washington Post that he had informed the Trump administration in August that Costa Rica would accept Abrego Garcia on humanitarian grounds and provide him legal residency, and that the “position that we have expressed in the past remains valid and unchanged to this day.”¹

Case 3: The “Midway Blitz” Injunction

Speaking of Thursday, we also received a 233-page opinion from Judge Sara Ellis in support of the injunction she had entered against various of the activities federal law enforcement officers were engaging in as part of Operation Midway Blitz in and around Chicago. I can’t possibly do the opinion justice in such a small space, but at the heart of it is Ellis’s conclusion that Border Patrol Commander Gregory Bovino repeatedly engaged in “outright lying” about the circumstances on the ground in Chicago—and the putative justifications for the escalation of uses of force by federal law enforcement officers in response to anti-ICE protests. As Ellis concluded, “While Defendants may argue that the Court identifies only minor inconsistencies, every minor inconsistency adds up, and at some point, it becomes difficult, if not impossible, to believe almost anything that Defendants represent.”²

Ellis’s factual findings are important not just in their own right, but because of how much the Department of Justice has relied upon many of the claims that Ellis specifically rejected in defending President Trump’s attempt to deploy federalized National Guard troops in and around Chicago—to protect the federal law enforcement officers against the very attacks that Ellis concluded, after detailed a evidentiary hearing, were either overstated, caused by the federal law enforcement officers, or both. In other words, even as the Solicitor General is continuing to urge the Supreme Court to pause a different Chicago district court’s order barring the deployment of federalized National Guard personnel, the factual basis for that deployment is increasingly struggling to withstand scrutiny.

I’ve written before about some of the liberties the Solicitor General has taken in at least a couple of the emergency applications he has filed with the justices, but we haven’t yet had quite as obvious a confrontation between the federal government’s representations and reality in a case before the Supreme Court. We may see some of that depending upon how the Court rules in the Illinois National Guard case. But even if we don’t, some kind of confrontation is inevitable. And the problem, when that happens, won’t just be the Department’s eroding credibility, but the Court’s. One of the most notorious moments in the Court’s history was when it took the federal government at its word in the Japanese internment cases—only for it to become clear, decades later, that the War Department lied to the Justice Department and the Justice Department, in turn, lied to the Court.

There, at least, the misrepresentations and misbehavior were in defense of a single misbegotten policy. With the Trump administration, as the events of the past week underscore, it’s becoming a daily affair.

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SCOTUS Trivia:
More on the Language of Circuit Justice Referrals

As I noted with respect to the Supreme Court’s November 11 ruling in the SNAP case, usually, when the circuit justice refers an application to the full Court for decision, the Court’s ultimate ruling notes as much even when the circuit justice is dissenting—e.g., “The application for stay presented to Justice Jackson and by her referred to the Court is granted.” It was, thus, striking that the Court’s November 11 order extending Justice Jackson’s administrative stay included no similar identifier; it merely noted that “The application for stay presented to Justice Jackson is referred to the Court.” At the time, I wrote that this unusual language appeared to suggest that, for perhaps only the second time in recent history, the full Court had taken a case away from the circuit justice.

Michael Kirk (from Cooper & Kirk in D.C.) wrote to flag something that I hadn’t noticed—which is that the Court also used the non-specific referral terminology in its orders denying three applications in last week’s Order List—each of which simply notes that the application was referred to the Court, without specifying by whom. But those cases, unlike the SNAP case, are examples of a phenomenon I’ve written about before—when a circuit justice denies an application in chambers, and the applicant re-files it with a second justice, as the Court’s (anachronistic) rules allow.

As that earlier post speculated, the Court’s practice in such cases appears to be to automatically refer the application to the full Court and then summarily deny it. Thus, the non-specific referral language in last Monday’s Order List, which also appears in all of the other recent examples of a “second justice” application, sure seems to confirm that speculation—and also to reinforce my suspicion that there’s some not-publicly-visible internal process by which the justices are deciding which applications to refer to the full Court initially versus which ones can be resolved individually. Otherwise, we’d expect a circuit justice acting by themselves to get it wrong at least every once in a while—and, for whatever reason, that’s just not happening.

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1. That report, among other developments, made its way into a supplemental filing Abrego Garcia made yesterday (Sunday) in the Tennessee criminal case—where he is seeking to dismiss the indictment based upon claims of vindictive and selective prosecution.

2. Ellis’s preliminary injunction in that case was temporarily stayed by the Seventh Circuit pending appeal last Wednesday, but almost entirely on the ground that it was overbroad. Not only did the Seventh Circuit not take issue with any of Ellis’s factual findings to date, but it all-but suggested that it might leave in place a more tailored injunction based upon the district court’s “voluminous and robust factual findings” going forward.