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.
Does it seem like members of the DOJ have forgotten the primary role of a prosecutor:to do justice? To achieve justice requires honesty to self and the tribunal inspired by unshakable commitment to the rule of law.
Abrego Garcia has been abused so much by the federal government that it is tyrannical in my view to allow it to deport him, separating him from his family (including children with special needs) in the process. This is patently absurd. How much abuse should they be allowed to inflict?
As to justices writing books, I'm okay with it, though they should carefully follow ethical guidelines. I was fine with Chief Justice Rehnquist writing his history books, for instance, or Thomas writing an autobiography, and so on.
The Litman review challenges Barrett's book on the merits. She didn't dislike Justice Jackson's book. The problem seems to be what justices write about and their writing skills.
The problem here sometimes is that subpar material is published because of their name. This happens in other cases, too. This is a matter of some concern, but it doesn't counsel a total boycott of books written by judges.
Speaking of subpar, Gorsuch’s first book was awful. A lot was just reprinting parts of opinions he had written. The order of the material made little sense and the book was devoid of adding value.
In almost all the writing that I've seen about the "presumption of regularity," almost all writers treat it as something akin to a faith that is essentially religious. That is a dangerous, anti-democratic, anti-constitutional tendency. Americans were not meant to have such faith in our representatives. That's why our Constitution provides, for example, for elections that permit us to remove the entire House of Representatives and 1/3 of Senators every 2 years and the President every 4 years (and to remove the President (and judges) much earlier by impeachment). That's also why our Constitution was amended very promptly to have the First Amendment secure "the freedom of speech" and "press" and "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
James Madison (rightly lauded as the Father of the Constitution and the Father of the Bill of Rights) repeatedly emphasized that information and knowledge (not a presumption of regularity) were essential to good self-government:
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
Information and knowledge (not a presumption of regularity) are essential to "government of the people, by the people, for the people," as President Lincoln famously phrased it at Gettysburg in November 1863.
The "presumption of regularity" exists only in litigation and only when the other party must bear the burden of proof. Moreover, in every case, the presumption always can be rebutted with evidence that the government violated the law or misrepresented factual information or the law relevant to that particular case. Rule 301 of the Federal Rules of Evidence states the relevant rule of law (https://www.law.cornell.edu/rules/fre/rule_301):
"In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally."
Clearly, such a presumption applies not only to government employees, but to every person being sued when the other party must bear the burden of proof.
To see an illustration of how government employees (far too regularly) abuse a presumption of regularity or a presumption of good faith, consider the dissent by Justices Kagan, Sotomayor and Jackson in Alexander v. S.C. State Conf. of the NAACP (2024) criticizing the majority of justices for pretending that the "presumption of good faith" meant the Court could pretend not to see evidence that our Constitution was being violated.
I think "presumption of regularity" is a valid principle that reflects the limited skillset of judges. It, however, has a limit, and the Trump Administration has far exceeded it.
Presumptions don't reflect any limitation on the skillset of judges (or juries). As Rule 301 expressly emphasized, a presumption can be rebutted with evidence. The duty of trial judges or juries necessarily is to adjudicate witness credibility and make findings of the material facts. As the dissenting justices in Alexander emphasized, such a presumption is a mere corollary of a burden of proof. A good illustration is very well known: in criminal cases, there is no presumption of regularity of the conduct of executive branch employees. Instead, the presumption is the opposite, i.e., that the accused is innocent. That presumption necessary entails a related presumption: that the accused is wrongly being prosecuted by executive branch officials. Those presumptions flow from the allocation of the burden of proof.
In a criminal trial, the executive branch must prove (beyond a reasonable doubt) every fact that is material to showing that a person committed every element of the crime at issue. In every criminal trial, every member of a jury or the judge must adjudicate whether the executive branch actually did prove every fact that was material to showing that a person committed every element of the crime at issue. The function of defense counsel is (merely) to highlight that the executive branch failed to prove at least one material fact beyond a reasonable doubt.
Since I argued that presumptions are not absolute, yes, they can be rebutted. The question is how much evidence is necessary. The burden of proof. If there is evidence of discrimination, for instance, the presumption might not be warranted.
Also, it is a question of when it is applied. Some situations are different than others.
The last paragraph on criminal trials is a big "okay?" to me. It doesn't tell me if, in such and such a case, not criminal presumption should not be allowed. That whole system is not present in other cases, for instance, so what about there? etc.
Hi Steve, the story "scotus" trivia sounds a little shady. At first blush, it sounds like the majority is sidelining minority justices' role in certiorari applications in cases they want to kill quietly. I would love it if you'd explain this story in more depth.
I've been really curious about their internal deliberation process, particularly how it might have changed since they got a supermajority. Maybe I'm just connecting pins with yarn. Still, the published opinions in Anderson (for example) seemed really fishy, given the per curiam label applied to them and the conflation of agreement with the result of an individual case to imply broader agreement on doctrine, since the minority opinion's language suggests what would typically be considered a pretty vigorous dissent. I know the majority gets the last say on publication, but it seems like they've really pressed their advantage in some jenky internal ways..
ie - I'm curious what kind of edits were made to the dissent before publication, without their permission, this always seemed like kind of a big thing :
Re: Halligan’s failure to present exculpatory evidence to the grand jury:
Presenting exculpatory evidence to the GJ is NOT a requirement of the Constitution, statute, or federal court rule , but is a requirement “only” of DOJ policy. So I surmise that the failure to present exculpatory evidence is not—by itself—fatal to the indictment. United States v. Williams (504 U.S. 36 (1992) https://www.law.cornell.edu/supct/html/90-1972.ZO.html
However, departure from DOJ policy by not presenting substantial exculpatory evidence to the GJ could be probative as to vindictive or selective prosecution and probative as to the presumption of regularity. (I interpret “regularity” to have both a “competence” element and an “honesty” element, i.e., an honestly incompetent prosecutor should not be entitled to a presumption that the government’s factual assertions can be relied upon or that the government has followed due process requirements.)
“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”.
Do we think the conservative Justices even care about this? It would not surprise me if the conservatives keep accepting whatever the government espouses. I’m super cynical at this point. I could see the conservatives telling the lower courts to never rule against the Trump administration
Good update. It's encouraging to observe the fruits of your labors from afar. Your work continues to inspire hope the light at the end of the tunnel is that of a new dawn and not an oncoming freight train.
Keep on making 'good trouble' for the sake of our beloved republic and nascent democracies abroad.
Naive questions: If there is an indictment approved by a grand jury or a sufficient number of jurors such as that presented by Halligan regarding Comey is there not be some verifiable or independent evidence that it has in fact been reviewed and approved by this jury? Or can the prosecutor as seems to have been the case in this instance, simply write up whatever he or she wants - or modify the indictment the jury had approved as he or she wishes - and then submit it? And if a prosecutor presents an indictment that is falsified in this way, is that not grounds for their disbarment? Or is this just another example of the new abnormal of the current DOJ - and other federal government departments and agencies?
Does it seem like members of the DOJ have forgotten the primary role of a prosecutor:to do justice? To achieve justice requires honesty to self and the tribunal inspired by unshakable commitment to the rule of law.
Abrego Garcia has been abused so much by the federal government that it is tyrannical in my view to allow it to deport him, separating him from his family (including children with special needs) in the process. This is patently absurd. How much abuse should they be allowed to inflict?
As to justices writing books, I'm okay with it, though they should carefully follow ethical guidelines. I was fine with Chief Justice Rehnquist writing his history books, for instance, or Thomas writing an autobiography, and so on.
The Litman review challenges Barrett's book on the merits. She didn't dislike Justice Jackson's book. The problem seems to be what justices write about and their writing skills.
The problem here sometimes is that subpar material is published because of their name. This happens in other cases, too. This is a matter of some concern, but it doesn't counsel a total boycott of books written by judges.
Speaking of subpar, Gorsuch’s first book was awful. A lot was just reprinting parts of opinions he had written. The order of the material made little sense and the book was devoid of adding value.
Yes. His second book has received some dubious reviews, too.
Now, he has a third, apparently.
Why isn't Bovino facing a contempt charge for his lying?
In almost all the writing that I've seen about the "presumption of regularity," almost all writers treat it as something akin to a faith that is essentially religious. That is a dangerous, anti-democratic, anti-constitutional tendency. Americans were not meant to have such faith in our representatives. That's why our Constitution provides, for example, for elections that permit us to remove the entire House of Representatives and 1/3 of Senators every 2 years and the President every 4 years (and to remove the President (and judges) much earlier by impeachment). That's also why our Constitution was amended very promptly to have the First Amendment secure "the freedom of speech" and "press" and "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
James Madison (rightly lauded as the Father of the Constitution and the Father of the Bill of Rights) repeatedly emphasized that information and knowledge (not a presumption of regularity) were essential to good self-government:
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
Information and knowledge (not a presumption of regularity) are essential to "government of the people, by the people, for the people," as President Lincoln famously phrased it at Gettysburg in November 1863.
The "presumption of regularity" exists only in litigation and only when the other party must bear the burden of proof. Moreover, in every case, the presumption always can be rebutted with evidence that the government violated the law or misrepresented factual information or the law relevant to that particular case. Rule 301 of the Federal Rules of Evidence states the relevant rule of law (https://www.law.cornell.edu/rules/fre/rule_301):
"In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally."
Clearly, such a presumption applies not only to government employees, but to every person being sued when the other party must bear the burden of proof.
To see an illustration of how government employees (far too regularly) abuse a presumption of regularity or a presumption of good faith, consider the dissent by Justices Kagan, Sotomayor and Jackson in Alexander v. S.C. State Conf. of the NAACP (2024) criticizing the majority of justices for pretending that the "presumption of good faith" meant the Court could pretend not to see evidence that our Constitution was being violated.
I think "presumption of regularity" is a valid principle that reflects the limited skillset of judges. It, however, has a limit, and the Trump Administration has far exceeded it.
Presumptions don't reflect any limitation on the skillset of judges (or juries). As Rule 301 expressly emphasized, a presumption can be rebutted with evidence. The duty of trial judges or juries necessarily is to adjudicate witness credibility and make findings of the material facts. As the dissenting justices in Alexander emphasized, such a presumption is a mere corollary of a burden of proof. A good illustration is very well known: in criminal cases, there is no presumption of regularity of the conduct of executive branch employees. Instead, the presumption is the opposite, i.e., that the accused is innocent. That presumption necessary entails a related presumption: that the accused is wrongly being prosecuted by executive branch officials. Those presumptions flow from the allocation of the burden of proof.
In a criminal trial, the executive branch must prove (beyond a reasonable doubt) every fact that is material to showing that a person committed every element of the crime at issue. In every criminal trial, every member of a jury or the judge must adjudicate whether the executive branch actually did prove every fact that was material to showing that a person committed every element of the crime at issue. The function of defense counsel is (merely) to highlight that the executive branch failed to prove at least one material fact beyond a reasonable doubt.
Your comment is all over the place.
Since I argued that presumptions are not absolute, yes, they can be rebutted. The question is how much evidence is necessary. The burden of proof. If there is evidence of discrimination, for instance, the presumption might not be warranted.
Also, it is a question of when it is applied. Some situations are different than others.
The last paragraph on criminal trials is a big "okay?" to me. It doesn't tell me if, in such and such a case, not criminal presumption should not be allowed. That whole system is not present in other cases, for instance, so what about there? etc.
Hi Steve, the story "scotus" trivia sounds a little shady. At first blush, it sounds like the majority is sidelining minority justices' role in certiorari applications in cases they want to kill quietly. I would love it if you'd explain this story in more depth.
I've been really curious about their internal deliberation process, particularly how it might have changed since they got a supermajority. Maybe I'm just connecting pins with yarn. Still, the published opinions in Anderson (for example) seemed really fishy, given the per curiam label applied to them and the conflation of agreement with the result of an individual case to imply broader agreement on doctrine, since the minority opinion's language suggests what would typically be considered a pretty vigorous dissent. I know the majority gets the last say on publication, but it seems like they've really pressed their advantage in some jenky internal ways..
ie - I'm curious what kind of edits were made to the dissent before publication, without their permission, this always seemed like kind of a big thing :
https://slate.com/news-and-politics/2024/03/supreme-court-metadata-sotomayor-trump-dissent.html
Re: Halligan’s failure to present exculpatory evidence to the grand jury:
Presenting exculpatory evidence to the GJ is NOT a requirement of the Constitution, statute, or federal court rule , but is a requirement “only” of DOJ policy. So I surmise that the failure to present exculpatory evidence is not—by itself—fatal to the indictment. United States v. Williams (504 U.S. 36 (1992) https://www.law.cornell.edu/supct/html/90-1972.ZO.html
However, departure from DOJ policy by not presenting substantial exculpatory evidence to the GJ could be probative as to vindictive or selective prosecution and probative as to the presumption of regularity. (I interpret “regularity” to have both a “competence” element and an “honesty” element, i.e., an honestly incompetent prosecutor should not be entitled to a presumption that the government’s factual assertions can be relied upon or that the government has followed due process requirements.)
Lousy Limericks:
There once was a lackey named Halligan,
who practiced law rarely or now and then.
When her second indictment
to the judge was incitement,
she had to go through the same hell again.
There once was an AG named Pam Bondi
who got the job because she’s a blondie.
She insulted the Court
with a sneer and a snort,
but the spanking she won’t recall fondly.
“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”.
Do we think the conservative Justices even care about this? It would not surprise me if the conservatives keep accepting whatever the government espouses. I’m super cynical at this point. I could see the conservatives telling the lower courts to never rule against the Trump administration
DATELINE KYIV - DAY 1370 : 4296
Good update. It's encouraging to observe the fruits of your labors from afar. Your work continues to inspire hope the light at the end of the tunnel is that of a new dawn and not an oncoming freight train.
Keep on making 'good trouble' for the sake of our beloved republic and nascent democracies abroad.
Thank you.
V/r - IB
An American in Ukraine
(2019 - Present)
Naive questions: If there is an indictment approved by a grand jury or a sufficient number of jurors such as that presented by Halligan regarding Comey is there not be some verifiable or independent evidence that it has in fact been reviewed and approved by this jury? Or can the prosecutor as seems to have been the case in this instance, simply write up whatever he or she wants - or modify the indictment the jury had approved as he or she wishes - and then submit it? And if a prosecutor presents an indictment that is falsified in this way, is that not grounds for their disbarment? Or is this just another example of the new abnormal of the current DOJ - and other federal government departments and agencies?