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.
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 :
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.
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.
Joe, you didn’t argue that presumptions aren’t absolute. So I did say anything about that either. Everything I wrote was directed at rebutting your presumption that a presumption of regularity (or presumptions, generally) implied that judges (or jurors) lacked the skills to adjudicate something. That just isn’t the purpose of any potentially relevant presumption.
Joe, of course my comments refuted your misperception. But in case I might have missed something, maybe you can explain how you think the presumption of regularity reflects any limitation on the abilities of judges (or juries). As a matter of law it just doesn't. But if you explain why you think what you think, maybe I can address your particular thinking.
Joe, your comment here shows that it's worth saying again that you're proving my point. I'm not faulting you. I'm faulting the people who write about the presumption of regularity.
The primary point of my first comment was that the people whom I've seen writing about the presumption of regularity are making people (like you) think the wrong thing about such presumption and similar presumptions.
It's also worthwhile circling back to my explanation regarding the presumption of innocence. The reason I presented that example is because virtually everyone is familiar with that presumption and virtually everyone can understand easily how the presumption flows from (is the result of) the corresponding burden of proof.
A presumption of regularity in a civil case against the government--just like the presumption of innocence in a criminal prosecution by the government--does not reflect a judge's or jurors' inability to adjudicate anything. Such presumptions are, in fact, reminders of what the judge or the jury MUST adjudicate.
Joe, your reply here proves my point. The writing we see about the presumption of regularity misleads people to think that a legitimate legal argument can be made that "the administration," in general, has exceeded the limits of the presumption. That's not how any presumption works in any case.
In every case in which the plaintiff must bear the burden of proof, the plaintiff in such case must rebut the presumption to overcome it. The plaintiff cannot rebut the presumption with general arguments about the general lack of credibility of "the administration." The plaintiff must rebut the presumption with case-specific information, e.g., that the government employees involved in that particular cases violated the law or misrepresented material facts or the law.
No judge who has any business being a judge would say, "the presumption is rebutted because this administration just is not credible, in general" (or conversely say, "government employees are entitled to a presumption merely because they are government employees"). The presumption applies in every case (until it has been rebutted with evidence relevant to that particular case) because the plaintiff must bear the burden of proof. That's a rule of law that doesn't depend on the general trustworthiness of any particular administration or even of any particular agency (e.g., the DOJ).
As was stated in the Florida Law Review analysis (linked to in the Just Security site), "because of the Supreme Court’s failure to squarely articulate the presumption and its limiting principles, courts have applied it in at least fourteen distinct ways.". There are similar significant flaws in other principles fabricated by the Court, such as the" major questions doctrine" and "original public meaning."
Dan, that's a very good point. That's part of the reason I wrote about this issue. Far too many judges are far too irresponsible in their use (or abuse) of such presumptions. Too many judges are far too inclined to help DOJ attorneys or other government employees cover up violations of law, whether due to incompetence or malevolence. This is not a new problem or a problem that is tied to Trump. It's tied, in part, to the fact that many judges were government attorneys. It's also tied, in part, to the fact that some judges try to (illegally) discourage certain cases or claims.
You point out "... the fact that many judges were government attorneys." With 3 Supreme Court justices having been not only former 'government attorneys', but lawyers who were actively engaged in a highly-partisan (Republican) steal of the election in Bush v Gore (Roberts, Kavanagh, Barrett), exactly what presumption of regularity are we, the people, supposed to have that they can be impartial arbiters of the law?
Dan, I'm trying to help you see the truth about the presumption of regularity. See, e.g., my original comment. Too many people use that expression to mean something akin to faith that is essentially religious. That is not what it means.
The presumption of regularity is a legal presumption that exists only in litigation and it applies only when the other party in a suit must bear some evidentiary burden. It has nothing to do with having faith in the integrity or credibility of judges or of an entire administration or of a department (e.g., the DOJ) generally. The writing I've been reading is, at best, unclear, and at worst, inaccurate. That's why I'm writing to object to such writing and to provide more clarity.
Regarding judges or the DOJ or any administration, my point (and Madison's point) was that we shouldn't merely presume that they aren't violating our Constitution.
We must ensure that we're informed about how our Constitution actually was designed to work because it is our duty (as citizens) to police our public servants. That's the primary point of the rights and freedoms secured by the First Amendment. That was the primary point of a unanimous SCOTUS in New York Times Co. v. Sullivan and in Garrison v. Louisiana in 1964.
In Sullivan, SCOTUS unanimously emphasized the following:
The First Amendment secures "the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer." "(I)t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions." "[S]uch a privilege is required by the First and Fourteenth Amendments."
One vital reason for “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” (by the people who founded this nation and wrote and ratified our Constitution and our Bill of Rights) to be “the only effectual guardian of every” American “right.”
Even more vital and even more fundamental, our freedom of thought, expression, communication, association and assembly truly flow from our sovereignty. So in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.”
"The protection of the public requires” both “discussion” and “information” about official conduct and misconduct. The opposite view merely “reflect[s] the obsolete [seditious libel] doctrine that the governed must not criticize their governors.” “The interest of the public" in the truth about purported public servants “outweighs the interest” of “any [offended] individual." Even the Sedition Act of 1798 expressly permitted bringing federal officials “into contempt or disrepute” or “excit[ing] against them” the “hatred” of the “people” unless such criticism was proved to be both “false” and “malicious.”
Such speech “should be uninhibited, robust, and wide-open,” and it may “include vehement, caustic,” and “unpleasantly sharp attacks on government and public officials.”
In Garrison, SCOTUS emphasized that such “speech concerning public affairs” is “the essence of self-government” (the essence of American government).
In Garrison, SCOTUS also emphasized that the “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant” and protected, including any purported public servants' “dishonesty, malfeasance, or improper motivation.”
“Truth may not be the subject of” any type of content-based “sanctions” “where discussion of public affairs is concerned,” so “only” such “statements” that were proved “false” may be punished with “either civil or criminal sanctions.” Our Constitution “absolutely prohibits” any content-based “punishment of truthful criticism” of any public servant’s public service.
Dan, this problem also is tied, in part, to the fact that too many government employees expect the rest of us to just have faith in them, i.e., that they aren't abusing their powers or usurping powers. As a judge actually said out loud (in the Just Security piece) some judges abuse the presumption of regularity as if it required something like "Blind deference to the government."
Madison was much more honest and pragmatic. For example, in Federalist No. 51, Madison highlighted that one thing we can always expect from people with power is that they will be motivated by personal ambition. He also highlighted that we cannot have faith that public servants will be angels.
"Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
The concept "presumption of regularity" sounds like it is being (or could be) used as a shield for misbehavior by the government. I understand the concept of presumption but is there any caselaw on this one, 'the presumption of regularity'? What is its origin?
As Dan mentioned, the Just Security piece (for which Professor Vladeck provided a link) included a link to at least one law review article. Dan mentioned one from Florida (which I didn't see). I saw a link to a Harvard Law Review note, which you can find easily by searching for "Harvard law review."
The Harvard Law Review Note indicates some ways that the "presumption of regularity" is abused by DOJ attorneys and judges.
One abuse consists of pretending that "[t]he presumption of regularity is a deference doctrine" (i.e., a function of the doctrine of separation of powers) that "narrows judicial scrutiny and widens executive discretion over decisionmaking processes and outcomes."
One of the most egregious (and patently illegal) abuses of the presumption of regularity (by judges and DOJ attorneys) has consisted of invoking the presumption for the purpose of helping conceal evidence that would prove that government employees did not act "regularly," i.e., that one or more purported public servants violated our Constitution: "In motivational disputes, the presumption of regularity helps courts identify or verify why the government acted. . . . This facet of the presumption has been used to bar discovery . . . ."
Both the foregoing abuses violate the rule of law stated in controlling federal law (Rule 301 of the Federal Rules of Civil Procedure) and the rule of law stated in a federal statute and the U.S. Constitution.
"No person" can be "deprived" by any federal employee (especially including every federal judge) "of life" or any "liberty" or any "property, without" all "process of law" that is "due." Amendment V. “Any” purported “rule” (or ruling) “creating, abolishing, or modifying” any “evidentiary privilege shall have no force or effect unless approved by Act of Congress.” 28 U.S.C. § 2074(b).
Judges cannot fabricate “any nonconstitutional testimonial privilege protecting” public servants “from any questioning.” Gravel v. United States, 408 U.S. 606, 627 (1972). No “judicially fashioned privilege” can “immunize” public servants’ “criminal conduct” or “frustrate” legitimate “inquiry into whether” their misconduct was “criminal.” Id. Accord 28 U.S.C. §§ 2071, 2072(b), 2074(b).
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?
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.
The review was well-written -- and scathing. In fairness, the critic provided a number of links to interviews so those who want to hear Barrett for themselves can do so. Personally, my reactions are 1- who does J Barrett imagine is her audience (sorry, I think she talks down to those among us who never clerked for Scalia), and 2 - I am glad when Justices write books, though can't imagine where they find the time.
Barrett apparently has been writing this for close to five years. Jackson's book had a quicker release time. OTOH, she only has two children, and Barrett has seven.
William Baude seems to think the book is ideal for the average reader. Baude and Litman have somewhat different perspectives.
Thanks for pointing me to Baude's review. He seems to agree with Barrett's perspective on originalism (no surprise). As you said, he highly recommends the book for lay readers.
His last para was: "I’ve heard it said that the American people get the Supreme Court Justices they deserve. I’ve had my disagreements with her decisions, but I think Justice Amy Coney Barrett may be a better Justice than we deserve." (His last sentence struck me as oddly negative in an otherwise upbeat article.)
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.
“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
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.)
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
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.
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.
Joe, you didn’t argue that presumptions aren’t absolute. So I did say anything about that either. Everything I wrote was directed at rebutting your presumption that a presumption of regularity (or presumptions, generally) implied that judges (or jurors) lacked the skills to adjudicate something. That just isn’t the purpose of any potentially relevant presumption.
I find the whole thing unilluminating then.
I acknowledge judges can adjudicate. I think their abilities are somewhat finite & the presumption of regularity reflects that.
Your extended comment didn't refute that. It just provided a lot of detail on what they CAN do in various contexts.
Joe, of course my comments refuted your misperception. But in case I might have missed something, maybe you can explain how you think the presumption of regularity reflects any limitation on the abilities of judges (or juries). As a matter of law it just doesn't. But if you explain why you think what you think, maybe I can address your particular thinking.
Joe, your comment here shows that it's worth saying again that you're proving my point. I'm not faulting you. I'm faulting the people who write about the presumption of regularity.
The primary point of my first comment was that the people whom I've seen writing about the presumption of regularity are making people (like you) think the wrong thing about such presumption and similar presumptions.
It's also worthwhile circling back to my explanation regarding the presumption of innocence. The reason I presented that example is because virtually everyone is familiar with that presumption and virtually everyone can understand easily how the presumption flows from (is the result of) the corresponding burden of proof.
A presumption of regularity in a civil case against the government--just like the presumption of innocence in a criminal prosecution by the government--does not reflect a judge's or jurors' inability to adjudicate anything. Such presumptions are, in fact, reminders of what the judge or the jury MUST adjudicate.
Joe, your reply here proves my point. The writing we see about the presumption of regularity misleads people to think that a legitimate legal argument can be made that "the administration," in general, has exceeded the limits of the presumption. That's not how any presumption works in any case.
In every case in which the plaintiff must bear the burden of proof, the plaintiff in such case must rebut the presumption to overcome it. The plaintiff cannot rebut the presumption with general arguments about the general lack of credibility of "the administration." The plaintiff must rebut the presumption with case-specific information, e.g., that the government employees involved in that particular cases violated the law or misrepresented material facts or the law.
No judge who has any business being a judge would say, "the presumption is rebutted because this administration just is not credible, in general" (or conversely say, "government employees are entitled to a presumption merely because they are government employees"). The presumption applies in every case (until it has been rebutted with evidence relevant to that particular case) because the plaintiff must bear the burden of proof. That's a rule of law that doesn't depend on the general trustworthiness of any particular administration or even of any particular agency (e.g., the DOJ).
As was stated in the Florida Law Review analysis (linked to in the Just Security site), "because of the Supreme Court’s failure to squarely articulate the presumption and its limiting principles, courts have applied it in at least fourteen distinct ways.". There are similar significant flaws in other principles fabricated by the Court, such as the" major questions doctrine" and "original public meaning."
Dan, that's a very good point. That's part of the reason I wrote about this issue. Far too many judges are far too irresponsible in their use (or abuse) of such presumptions. Too many judges are far too inclined to help DOJ attorneys or other government employees cover up violations of law, whether due to incompetence or malevolence. This is not a new problem or a problem that is tied to Trump. It's tied, in part, to the fact that many judges were government attorneys. It's also tied, in part, to the fact that some judges try to (illegally) discourage certain cases or claims.
You point out "... the fact that many judges were government attorneys." With 3 Supreme Court justices having been not only former 'government attorneys', but lawyers who were actively engaged in a highly-partisan (Republican) steal of the election in Bush v Gore (Roberts, Kavanagh, Barrett), exactly what presumption of regularity are we, the people, supposed to have that they can be impartial arbiters of the law?
Dan, I'm trying to help you see the truth about the presumption of regularity. See, e.g., my original comment. Too many people use that expression to mean something akin to faith that is essentially religious. That is not what it means.
The presumption of regularity is a legal presumption that exists only in litigation and it applies only when the other party in a suit must bear some evidentiary burden. It has nothing to do with having faith in the integrity or credibility of judges or of an entire administration or of a department (e.g., the DOJ) generally. The writing I've been reading is, at best, unclear, and at worst, inaccurate. That's why I'm writing to object to such writing and to provide more clarity.
Regarding judges or the DOJ or any administration, my point (and Madison's point) was that we shouldn't merely presume that they aren't violating our Constitution.
We must ensure that we're informed about how our Constitution actually was designed to work because it is our duty (as citizens) to police our public servants. That's the primary point of the rights and freedoms secured by the First Amendment. That was the primary point of a unanimous SCOTUS in New York Times Co. v. Sullivan and in Garrison v. Louisiana in 1964.
In Sullivan, SCOTUS unanimously emphasized the following:
The First Amendment secures "the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer." "(I)t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions." "[S]uch a privilege is required by the First and Fourteenth Amendments."
One vital reason for “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” (by the people who founded this nation and wrote and ratified our Constitution and our Bill of Rights) to be “the only effectual guardian of every” American “right.”
Even more vital and even more fundamental, our freedom of thought, expression, communication, association and assembly truly flow from our sovereignty. So in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.”
"The protection of the public requires” both “discussion” and “information” about official conduct and misconduct. The opposite view merely “reflect[s] the obsolete [seditious libel] doctrine that the governed must not criticize their governors.” “The interest of the public" in the truth about purported public servants “outweighs the interest” of “any [offended] individual." Even the Sedition Act of 1798 expressly permitted bringing federal officials “into contempt or disrepute” or “excit[ing] against them” the “hatred” of the “people” unless such criticism was proved to be both “false” and “malicious.”
Such speech “should be uninhibited, robust, and wide-open,” and it may “include vehement, caustic,” and “unpleasantly sharp attacks on government and public officials.”
In Garrison, SCOTUS emphasized that such “speech concerning public affairs” is “the essence of self-government” (the essence of American government).
In Garrison, SCOTUS also emphasized that the “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant” and protected, including any purported public servants' “dishonesty, malfeasance, or improper motivation.”
“Truth may not be the subject of” any type of content-based “sanctions” “where discussion of public affairs is concerned,” so “only” such “statements” that were proved “false” may be punished with “either civil or criminal sanctions.” Our Constitution “absolutely prohibits” any content-based “punishment of truthful criticism” of any public servant’s public service.
Dan, this problem also is tied, in part, to the fact that too many government employees expect the rest of us to just have faith in them, i.e., that they aren't abusing their powers or usurping powers. As a judge actually said out loud (in the Just Security piece) some judges abuse the presumption of regularity as if it required something like "Blind deference to the government."
Madison was much more honest and pragmatic. For example, in Federalist No. 51, Madison highlighted that one thing we can always expect from people with power is that they will be motivated by personal ambition. He also highlighted that we cannot have faith that public servants will be angels.
"Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
The concept "presumption of regularity" sounds like it is being (or could be) used as a shield for misbehavior by the government. I understand the concept of presumption but is there any caselaw on this one, 'the presumption of regularity'? What is its origin?
As Dan mentioned, the Just Security piece (for which Professor Vladeck provided a link) included a link to at least one law review article. Dan mentioned one from Florida (which I didn't see). I saw a link to a Harvard Law Review note, which you can find easily by searching for "Harvard law review."
The Harvard Law Review Note indicates some ways that the "presumption of regularity" is abused by DOJ attorneys and judges.
One abuse consists of pretending that "[t]he presumption of regularity is a deference doctrine" (i.e., a function of the doctrine of separation of powers) that "narrows judicial scrutiny and widens executive discretion over decisionmaking processes and outcomes."
One of the most egregious (and patently illegal) abuses of the presumption of regularity (by judges and DOJ attorneys) has consisted of invoking the presumption for the purpose of helping conceal evidence that would prove that government employees did not act "regularly," i.e., that one or more purported public servants violated our Constitution: "In motivational disputes, the presumption of regularity helps courts identify or verify why the government acted. . . . This facet of the presumption has been used to bar discovery . . . ."
Both the foregoing abuses violate the rule of law stated in controlling federal law (Rule 301 of the Federal Rules of Civil Procedure) and the rule of law stated in a federal statute and the U.S. Constitution.
"No person" can be "deprived" by any federal employee (especially including every federal judge) "of life" or any "liberty" or any "property, without" all "process of law" that is "due." Amendment V. “Any” purported “rule” (or ruling) “creating, abolishing, or modifying” any “evidentiary privilege shall have no force or effect unless approved by Act of Congress.” 28 U.S.C. § 2074(b).
Judges cannot fabricate “any nonconstitutional testimonial privilege protecting” public servants “from any questioning.” Gravel v. United States, 408 U.S. 606, 627 (1972). No “judicially fashioned privilege” can “immunize” public servants’ “criminal conduct” or “frustrate” legitimate “inquiry into whether” their misconduct was “criminal.” Id. Accord 28 U.S.C. §§ 2071, 2072(b), 2074(b).
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?
Why isn't Bovino facing a contempt charge for his lying?
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.
The review was well-written -- and scathing. In fairness, the critic provided a number of links to interviews so those who want to hear Barrett for themselves can do so. Personally, my reactions are 1- who does J Barrett imagine is her audience (sorry, I think she talks down to those among us who never clerked for Scalia), and 2 - I am glad when Justices write books, though can't imagine where they find the time.
Barrett apparently has been writing this for close to five years. Jackson's book had a quicker release time. OTOH, she only has two children, and Barrett has seven.
William Baude seems to think the book is ideal for the average reader. Baude and Litman have somewhat different perspectives.
Joe,
Thanks for pointing me to Baude's review. He seems to agree with Barrett's perspective on originalism (no surprise). As you said, he highly recommends the book for lay readers.
His last para was: "I’ve heard it said that the American people get the Supreme Court Justices they deserve. I’ve had my disagreements with her decisions, but I think Justice Amy Coney Barrett may be a better Justice than we deserve." (His last sentence struck me as oddly negative in an otherwise upbeat article.)
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)
“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
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.
Thanks for the link to Leah Litman's review of Barrett's book. I loved her last line "The prose is quite good, though."
Thanks so much for this post! And the reference to the Litman review of Coney Barrett”s book—so on target!!!