# Justice Department Versus the Federal Judiciary

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 23 Oct 2026, 32 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/e3a6f106-5f66-4849-bd2c-b4ec002b5f01/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Judge Jeremy Fogel, formerly of the US District Court for the Northern District of California, discusses the contentious relationship between the Trump Justice Department and the federal judiciary. Then Bloomberg Law reporter Suzanne Monyak discusses the prominent role political appointees are playing in the Justice Department. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
[0:08] Speaker 1: President Donald Trump has repeatedly railed against federal judges and
[0:14] Speaker 1: even Supreme Court justices. Radical left judges.
[0:17] Speaker 2: It's a nasty judge.
[0:20] Speaker 3: Radical left lunatic judges.
[0:22] Speaker 1: His attorney general, Todd Blanche, has described the administration's relationship
[0:27] Speaker 1: with judges as a war.
[0:29] Speaker 4: There's a group of judges that are repeat players, and
[0:31] Speaker 4: that's obviously not by happenstance.
[0:34] Speaker 3: That's intentional.
[0:36] Speaker 2: And it's a it's a war, man.
[0:39] Speaker 1: And the Justice Department has followed through by treating judges
[0:43] Speaker 1: as adversaries to be challenged and at times violating court orders,
[0:48] Speaker 1: leading judges to become increasingly mistrustful of the government's representations.
[0:54] Speaker 1: The latest escalation is top Justice Department officials accusing judges
[0:59] Speaker 1: of misconduct and bias against Trump, asking them to recuse
[1:04] Speaker 1: themselves And this week, filing motions to get two Minnesota
[1:08] Speaker 1: federal judges recused from ongoing immigration cases. Joining me is
[1:14] Speaker 1: Judge Jeremy Fogel, who formerly sat on the United States
[1:17] Speaker 1: District Court for the Northern District of California. Judge Fogel,
[1:22] Speaker 1: what we've been seeing in Washington, D.C. lately is this
[1:25] Speaker 1: ballooning of cases over President Trump's attempts to put his
[1:30] Speaker 1: mark on D.C., whether it's the proposed monumental arch or
[1:36] Speaker 1: the potential destruction of the Kennedy Center, the White House ballroom,
[1:42] Speaker 1: the renovation of a public golf course. About nine federal
[1:46] Speaker 1: judges have been involved in these cases challenging Trump's various
[1:51] Speaker 1: construction projects, where they have to deal with an administration
[1:56] Speaker 1: that's basically trying to outrun the courts in you know,
[2:00] Speaker 1: speeding to do work before a court can intervene. And
[2:04] Speaker 1: it seems like they're either becoming increasingly mistrustful of the
[2:08] Speaker 1: administration or just frustrated. You could see it in some
[2:12] Speaker 1: of the hearings. Do you sort of sympathize with what
[2:15] Speaker 1: they're dealing with?
[2:16] Speaker 2: Oh, sure. I mean, you know, the legal process is
[2:18] Speaker 2: meant to be deliberate and orderly. And, you know, people
[2:21] Speaker 2: submit briefs and they make arguments. And, you know, you
[2:23] Speaker 2: have an opportunity to weigh what the correct course of
[2:26] Speaker 2: action is under the law. And the speed at which
[2:29] Speaker 2: things are happening makes that impossible. So everything is being
[2:32] Speaker 2: done on a urgent basis and with partial information. I
[2:36] Speaker 2: live in D.C., so I've seen it up close. We
[2:38] Speaker 2: saw it with the Kennedy Center. We saw it with
[2:40] Speaker 2: the trees on the golf course. We saw it with
[2:42] Speaker 2: the ballroom. They're all similar in the sense that things
[2:45] Speaker 2: are being done in the moment, and the judges are
[2:48] Speaker 2: being asked by people who object to those things to act.
[2:51] Speaker 2: And the courts just aren't really in a position to
[2:53] Speaker 2: move quite that quickly. They move as quickly as they can,
[2:56] Speaker 2: but the judges want to give reasoned opinions. They want
[2:58] Speaker 2: to explain why they're doing. That's the way they've been trained.
[3:00] Speaker 2: That's what their obligation is. The ballroom case is really
[3:03] Speaker 2: the perfect example because by the time the issue got
[3:06] Speaker 2: to the Supreme Court, basically it had been done. I mean,
[3:09] Speaker 2: it was at a point where there really wasn't much
[3:11] Speaker 2: that a court could do, even if it felt that
[3:13] Speaker 2: what had been done was incorrect. Same thing happened most
[3:16] Speaker 2: recently with the golf course. I mean, the trees were
[3:18] Speaker 2: cut down before the judge was really even in a
[3:20] Speaker 2: position to deal with the fact that she had made
[3:22] Speaker 2: an order that they were supposed to inform her of
[3:24] Speaker 2: any meaningful developments. So, you know, I think it's really
[3:27] Speaker 2: hard on the judges. It's hard on them procedurally. I'm
[3:30] Speaker 2: not asking for sympathy. It's just in order for them
[3:32] Speaker 2: to do their jobs correctly, they can't do it in
[3:35] Speaker 2: that kind of a timeframe with that kind of aggressive
[3:38] Speaker 2: action being taken by a party. And then what happens
[3:41] Speaker 2: is when they do speak up and when they do
[3:43] Speaker 2: try to raise caution flag or, you know, raise the
[3:46] Speaker 2: stop sign, then they get vilified. And, you know, it
[3:49] Speaker 2: happened to Judge Cooper in the Kennedy Center case. It
[3:52] Speaker 2: happened to Judge Reyes in the Tree case. So it's
[3:54] Speaker 2: happening pretty much across the board. And I think it's
[3:57] Speaker 2: challenging both judicially and personally.
[3:59] Speaker 1: Judge Reyes said she was furious about the government cutting
[4:03] Speaker 1: down those hundreds of trees over a holiday weekend with
[4:09] Speaker 1: little notice. And she said in her memorandum, breakneck speed
[4:13] Speaker 1: to clear trees that pose no harm, the reason disputed,
[4:17] Speaker 1: the budget unclear, the environmental impact unstudied, the urgency none,
[4:22] Speaker 1: next steps, bulldoze, hundreds more. She said that she was
[4:26] Speaker 1: furious in the courtroom and, you know, she chastised the
[4:30] Speaker 1: government attorney. I've heard judges yell in a courtroom many times.
[4:35] Speaker 1: At what point does it cross the line?
[4:37] Speaker 2: Well, judges shouldn't yell in the courtroom ever, in my
[4:40] Speaker 2: humble opinion. And I was a judge for 37 years,
[4:43] Speaker 2: and I tried very hard not to yell at people.
[4:45] Speaker 2: I just think judicial demeanor is really important. It's what
[4:48] Speaker 2: people remember the most sometimes, even more than the ruling
[4:51] Speaker 2: that's made. In a high-stakes case like this, that's not
[4:53] Speaker 2: really true. But I think it is unusual for a
[4:56] Speaker 2: judge to be so pushed by circumstances that she or
[4:59] Speaker 2: he does that. One of the things that troubles me
[5:02] Speaker 2: here is I'm not defending Judge Reyes or any judge
[5:05] Speaker 2: losing their temper in the courtroom, but what's happening here
[5:08] Speaker 2: is that it's been used as a diversion. It's been
[5:10] Speaker 2: used as a distraction from what the actual issues are.
[5:13] Speaker 2: I don't blame her for being angry. I mean, one
[5:15] Speaker 2: can look at how that anger was regulated or not
[5:17] Speaker 2: regulated in the particular situation, but the fact that she
[5:20] Speaker 2: was angry is totally understandable given the circumstances. So It
[5:24] Speaker 2: is somewhat disingenuous to use one of my least favorite
[5:27] Speaker 2: words that lawyers use. It's somewhat disingenuous to say, well,
[5:30] Speaker 2: this is all about Judge Reyes being emotional in the courtroom.
[5:33] Speaker 2: And it's much more about, well, the government had a
[5:35] Speaker 2: court order which it disregarded. And that's what that's about.
[5:39] Speaker 2: And I have to add here, I think Judge Reyes
[5:42] Speaker 2: has been quite unfairly targeted, not only in this case,
[5:44] Speaker 2: but in other cases she's handled. And personal attacks referring
[5:47] Speaker 2: to her gender, her sexual orientation, her national origin, all
[5:52] Speaker 2: sorts of things that are really kind of irrelevant to
[5:54] Speaker 2: the legal issues in the cases before her. And I
[5:56] Speaker 2: think that's really unfortunate.
[5:58] Speaker 1: And she said that, you know, she's gotten death threats.
[6:01] Speaker 1: The president on social media called her a crazed lunatic.
[6:06] Speaker 1: And his words can sometimes lead to threats coming from
[6:10] Speaker 1: his followers.
[6:11] Speaker 2: Well, I don't know that the president or any other
[6:13] Speaker 2: administration official has actually threatened a judge. But what happens
[6:17] Speaker 2: is when they use language like that, when they make
[6:19] Speaker 2: these ad hominem attacks and they call people crazy lunatics
[6:22] Speaker 2: and worse, that incites other people. And you see it
[6:25] Speaker 2: on social media. You see it within minutes after things
[6:28] Speaker 2: like that are said. You can see the viral comments
[6:31] Speaker 2: on social media, which... do involve threats. And some of
[6:34] Speaker 2: the threats are taken quite seriously by the marshal service,
[6:37] Speaker 2: which needs to protect the judges. And they need to
[6:39] Speaker 2: say it's not just against the judges. I mean, the
[6:41] Speaker 2: judges are used to controversy. A judge has to have
[6:44] Speaker 2: a certain amount of thick skin to deal with controversy.
[6:46] Speaker 2: It comes with the job. But your family didn't sign
[6:48] Speaker 2: up for it. Your spouse or your children or the
[6:50] Speaker 2: other people you love in your life, I mean, they
[6:51] Speaker 2: didn't sign up for it. And the threats are being
[6:54] Speaker 2: directed against them. You know, I have to say it's
[6:56] Speaker 2: not partisan in the sense that it's not only against
[6:59] Speaker 2: judges who are on the Democratic side. Justice Barrett's family
[7:03] Speaker 2: was threatened when she made a ruling the president didn't like.
[7:05] Speaker 2: And Justice Kavanaugh was threatened with assassination by somebody who
[7:09] Speaker 2: didn't like rulings that he had made. So it is
[7:10] Speaker 2: kind of bipartisan. But there's an atmosphere where rhetoric that
[7:14] Speaker 2: attacks judges personally... I want to be really clear. I mean,
[7:17] Speaker 2: under the First Amendment, if people want to criticize a ruling,
[7:19] Speaker 2: they have every right to do that. And they can
[7:21] Speaker 2: criticize the ruling in very sharp terms and they can
[7:23] Speaker 2: appeal the ruling and they can try to stir up
[7:25] Speaker 2: public outcry against the ruling. That's fine. But it's out
[7:29] Speaker 2: of bounds to go after the judges personally, and it's
[7:31] Speaker 2: certainly out of bounds to go after the judges' families personally.
[7:34] Speaker 2: And that's what's happened. And it's an indirect approach in
[7:37] Speaker 2: the sense that, as I said, I don't think any
[7:39] Speaker 2: government officials actually made threats. But they use rhetoric, which
[7:42] Speaker 2: you think about it for five minutes, you can see
[7:44] Speaker 2: that somebody would take that as an invitation to make threats.
[7:48] Speaker 2: And I think that's what's happened.
[7:49] Speaker 1: Several judges in D.C., they've sort of expressed displeasure about
[7:53] Speaker 1: having to micromanage these projects.
[7:56] Speaker 4: So.
[7:57] Speaker 1: Judge Christopher Cooper, who's handling the Kennedy Center case, said,
[8:02] Speaker 1: you're asking the court arguably, you know, to micromanage the
[8:05] Speaker 1: Kennedy Center, you know, construction projects, which obviously I'm not
[8:09] Speaker 1: in a position to do, and it's not my role
[8:12] Speaker 1: to do. And Judge Reyes said, I don't want to
[8:15] Speaker 1: be the overseer of Parks and Rec. I'm no Amy Poehler.
[8:18] Speaker 1: So they're put in a position because there's no trust
[8:21] Speaker 1: that the Trump administration won't move forward on the projects.
[8:25] Speaker 1: they're in a position of having to micromanage construction projects.
[8:32] Speaker 2: Yes, that's exactly right. I think the effect is that
[8:35] Speaker 2: unless the order says you may not, I mean, Judge
[8:37] Speaker 2: Reyes said you don't take any significant actions without getting
[8:40] Speaker 2: court approval. That was what her order said. It was
[8:42] Speaker 2: an oral order. She did not say do not cut
[8:45] Speaker 2: down this tree located in the middle of the East
[8:48] Speaker 2: Potomac golf course. You know, she didn't get down to
[8:50] Speaker 2: that level of And if she tries to do anything
[8:53] Speaker 2: about it, if she tries to impose sanctions or initiate
[8:56] Speaker 2: a contempt proceeding, I predict one of the things the administration,
[8:59] Speaker 2: one of the things that DOJ will do is they'll say, well,
[9:01] Speaker 2: the order was unclear and it didn't say we couldn't
[9:04] Speaker 2: cut trees down. And this happened with the Kennedy Center, too.
[9:07] Speaker 2: It had to do with scaffolding and locking the doors
[9:10] Speaker 2: and building a fence and all these other things that
[9:12] Speaker 2: Judge Cooper had to deal with. He didn't anticipate all
[9:14] Speaker 2: the things they were going to do. And I think
[9:16] Speaker 2: the result of the government's actions was that he really
[9:19] Speaker 2: was put in the position where he had to micromanage
[9:21] Speaker 2: that situation. And judges are not well situated to do that.
[9:23] Speaker 2: And that's not their job.
[9:25] Speaker 1: And in a lot of these D.C. cases, you see
[9:28] Speaker 1: this sort of growing mistrust of the executive branch and
[9:32] Speaker 1: whether they can believe what the government lawyers are telling them.
[9:36] Speaker 1: In the golf course case, the government lawyer said in
[9:39] Speaker 1: court that there were no final plans. To build the
[9:42] Speaker 1: golf course, to renovate the golf course. But then President
[9:44] Speaker 1: Trump in a social media post said it's going ahead immediately. Yeah.
[9:48] Speaker 1: And Judge Reyes said they'd lost credibility. And Judge Tanya Chukin,
[9:54] Speaker 1: who's handling the Arch case, said the lawyers come in
[9:58] Speaker 1: and say, I don't know. I'm not aware of anything,
[10:01] Speaker 1: but that doesn't mean it's not happening.
[10:03] Speaker 2: You really put your finger on what I think is
[10:05] Speaker 2: perhaps the most significant thing here. And I don't want
[10:08] Speaker 2: to minimize the attacks on the judges or their having
[10:11] Speaker 2: to deal with the threats and their having to deal
[10:13] Speaker 2: with their families being exposed to this kind of stuff.
[10:15] Speaker 2: I mean, I think that's incredibly serious. But I think
[10:18] Speaker 2: on a systemic level, level. The most serious thing is
[10:21] Speaker 2: that I think the federal judiciary around the country is
[10:23] Speaker 2: really starting to lose trust in the Department of Justice. Now,
[10:26] Speaker 2: you know, there's a concept called the presumption of regularity,
[10:29] Speaker 2: that when DOJ comes into court and says, Judge, this
[10:32] Speaker 2: is what's what, and this is what we're doing, there's
[10:33] Speaker 2: a presumption that they're doing their jobs in a regular way,
[10:37] Speaker 2: that whether you agree with them or not, you can
[10:38] Speaker 2: trust that they're telling you something that's truthful. I was
[10:41] Speaker 2: a judge, as I said, for 37 years. For 20
[10:44] Speaker 2: of those years, I was a federal judge. And I
[10:46] Speaker 2: dealt with the DOJ on a pretty regular basis. And
[10:49] Speaker 2: I can think of any number of situations where I
[10:52] Speaker 2: didn't agree with them about something. They took a legal
[10:53] Speaker 2: position I didn't like, or they took a sentencing position
[10:56] Speaker 2: I didn't like, or there were things we could disagree about.
[10:58] Speaker 2: I don't remember a time that I didn't trust them,
[11:01] Speaker 2: where I thought somebody was telling me something that wasn't true.
[11:03] Speaker 2: Or that somebody was telling me something for an improper motive,
[11:07] Speaker 2: that they were doing something that was outside the scope
[11:09] Speaker 2: of their mission as prosecutors or as representatives of the
[11:12] Speaker 2: government in civil cases. And I think that's been the
[11:14] Speaker 2: experience of judges of my vintage around the country, that
[11:18] Speaker 2: one thing you can count on is that the DOJ
[11:20] Speaker 2: lawyers are going to be ethical. And that's not presumed anymore.
[11:23] Speaker 2: And then you have examples like this that I think
[11:25] Speaker 2: really are kind of shaking that faith. And I think
[11:27] Speaker 2: that is a serious problem if you think about it,
[11:29] Speaker 2: because these people have the power of the state. They
[11:32] Speaker 2: represent the government. They are the agents through which the
[11:35] Speaker 2: government does so many things in the legal arena. And
[11:38] Speaker 2: you really have to be able to trust them. You
[11:40] Speaker 2: don't have to agree with them, but you have to
[11:41] Speaker 2: be able to trust them. And I think that's the
[11:43] Speaker 2: larger narrative here.
[11:44] Speaker 1: So what can judges do if they don't feel they
[11:47] Speaker 1: can trust what the government lawyers are saying? I mean,
[11:51] Speaker 1: should they get them to sign affidavits for everything?
[11:55] Speaker 2: They don't need to do that because when a lawyer
[11:58] Speaker 2: stands up in court and makes a representation that something
[12:01] Speaker 2: is a fact, and if they do so knowing that
[12:03] Speaker 2: that's not a fact, that's wrong. It's a violation of
[12:07] Speaker 2: their ethical responsibilities. They can be held in contempt by
[12:10] Speaker 2: the court. They can be referred for discipline by the
[12:12] Speaker 2: local bar association that licensed them. Lawyers have a duty
[12:15] Speaker 2: of candor, and it doesn't mean they can't be vigorous advocates.
[12:18] Speaker 2: In fact, they're supposed to be vigorous advocates, but they're
[12:20] Speaker 2: also supposed to be candid. They're supposed to tell the
[12:23] Speaker 2: court the truth. So I don't know that they need
[12:25] Speaker 2: to sign anything. I think if you asked them to
[12:28] Speaker 2: do that, you know, that would just make it more difficult.
[12:31] Speaker 2: even more compelling. You know, this is a document you signed, counsel,
[12:34] Speaker 2: you know, but I don't think that level of formality
[12:37] Speaker 2: is really required.
[12:38] Speaker 1: And after Judge Reyes chastised the government lawyers, they asked
[12:42] Speaker 1: her to recuse herself, which she refused to do. So,
[12:45] Speaker 1: I mean, it's not that they're saying, you know, we're sorry,
[12:48] Speaker 1: we should have given you more notice, blah, blah, blah,
[12:51] Speaker 1: we shouldn't have cut down the trees. They're saying, No,
[12:54] Speaker 1: we want you off this case because you're biased against us.
[12:57] Speaker 2: Yeah, because you yelled at us, basically. See, this is
[13:00] Speaker 2: what I mean about it's a diversionary tactic. You know,
[13:03] Speaker 2: the cases, as you were just describing, I mean, there
[13:05] Speaker 2: was an order made. The order, at least arguably, was violated.
[13:08] Speaker 2: She said no major actions. They represented that no major
[13:11] Speaker 2: actions were going to be taken. Then they cut down
[13:13] Speaker 2: hundreds of trees. Well, so that's a problem, right? That's
[13:16] Speaker 2: what got her mad. And you can say, well, she
[13:19] Speaker 2: probably can look back on it and say, it would
[13:21] Speaker 2: have been nice if I had regulated my voice a
[13:24] Speaker 2: little bit. But that has nothing to do with the
[13:26] Speaker 2: legal merits of the case. It has nothing to do
[13:28] Speaker 2: with the correctness of the order she made or its incorrectness.
[13:30] Speaker 2: And so what they've done is they've made her the issue,
[13:34] Speaker 2: which is which is tremendously unfair to her, and it's
[13:37] Speaker 2: misleading to the public as to what the case is about.
[13:40] Speaker 2: You know, if she had made an order out of
[13:42] Speaker 2: the blue that didn't have any evidentiary basis, it was
[13:44] Speaker 2: outside of her powers, it was just, you know, a
[13:46] Speaker 2: judge being high-handed and doing things that she didn't have
[13:49] Speaker 2: the power to do, that's different. I mean, that's something
[13:52] Speaker 2: that you might want to recuse a judge who exhibited
[13:54] Speaker 2: that kind of behavior. But that's not what happened. I mean,
[13:57] Speaker 2: it just isn't what happened, and it's really unfair to
[13:59] Speaker 2: Judge Reyes to characterize what happened that way.
[14:01] Speaker 1: Coming up next, we'll talk about those recusal motions. This
[14:05] Speaker 1: is Bloomberg. Let's turn to Minnesota, where the federal courts
[14:09] Speaker 1: have had a lot of run-ins with the Justice Department
[14:13] Speaker 1: in immigration cases. Now, the Justice Department is demanding that
[14:18] Speaker 1: two Minnesota federal judges be recused from ongoing immigration cases
[14:24] Speaker 1: after giving recent interviews to the New York Times. Last month,
[14:28] Speaker 1: the Justice Department had already accused the judges of misconduct
[14:33] Speaker 1: in a complaint to the chief judge of the Court
[14:35] Speaker 1: of Appeals for the Eighth Circuit. I've been talking to
[14:38] Speaker 1: Judge Jeremy Fogel, who sat on the U.S. District Court
[14:42] Speaker 1: for the Northern District of California, about the increasingly contentious
[14:46] Speaker 1: relationship between the Justice Department and the federal judiciary. They
[14:51] Speaker 1: seem to be trying to turn the tables, so they filed...
[14:54] Speaker 1: For example, the judicial misconduct complaint against seven federal judges
[14:59] Speaker 1: in Minnesota claiming that they violated ethics. I mean, they
[15:04] Speaker 1: did this also before in Maryland, I think. They tried that.
[15:07] Speaker 2: Well, they did that in Maryland. For a different reason.
[15:09] Speaker 2: There was a rule of court that the District of
[15:12] Speaker 2: Maryland adopted saying don't deport anybody on an immigration case
[15:16] Speaker 2: without giving us 48 hours to look at the habeas
[15:19] Speaker 2: corpus petition that the person being deported filed. So it
[15:22] Speaker 2: was really giving the court a chance to do its job,
[15:24] Speaker 2: and 48 hours is really not a long time, especially
[15:27] Speaker 2: if it involves a weekend or something like that. And
[15:30] Speaker 2: the Department of Justice sued all the judges personally in
[15:33] Speaker 2: federal court saying that they didn't have the power to
[15:35] Speaker 2: do that. They had a remedy. They could have gone
[15:37] Speaker 2: directly to the Fourth Circuit. The Fourth Circuit has a
[15:40] Speaker 2: procedure for challenging local rules of court. They could have
[15:43] Speaker 2: asked the court for a hearing on whether the rule
[15:45] Speaker 2: of court was properly adopted. But instead, they sued all
[15:48] Speaker 2: the judges personally. And the judge to whom the case
[15:50] Speaker 2: was assigned... who was a judge out of Maryland, obviously.
[15:53] Speaker 2: He was another judge in the Fourth Circuit. He said, essentially,
[15:55] Speaker 2: the complaint was frivolous. You know, they had a remedy
[15:58] Speaker 2: and they didn't use it. They went after the judges personally.
[16:01] Speaker 2: So what happened in Minnesota was a little bit different.
[16:03] Speaker 2: It also involved immigration. There was a surge that ICE
[16:07] Speaker 2: initiated in Minnesota during the winter, last winter. And there
[16:11] Speaker 2: were lots and lots of arrests and lots of people
[16:12] Speaker 2: getting deported. And there were lots of habeas corpus petitions
[16:15] Speaker 2: that were filed in the And the chief judge at
[16:19] Speaker 2: the time, his name is Patrick Schultz, detailed close to
[16:23] Speaker 2: 100 cases where he and his colleagues believed that orders
[16:27] Speaker 2: were made and not complied with, that they could document
[16:30] Speaker 2: that volume of noncompliance. They felt that the effect of
[16:34] Speaker 2: that was that it really completely threw a monkey wrench
[16:37] Speaker 2: in the gears of the court. They couldn't get their
[16:38] Speaker 2: work done. They couldn't handle their other cases. It just
[16:41] Speaker 2: put an intolerable burden on the judges because there was
[16:44] Speaker 2: no regular order. I mean, the orders were just not
[16:45] Speaker 2: being followed. And, you know, there's a lot of community
[16:49] Speaker 2: unrest going on at the time. You know, people were
[16:51] Speaker 2: protesting the surge and courts inability to do anything about
[16:55] Speaker 2: it because of this disruption. It just made matters worse.
[16:58] Speaker 2: You know, there were much more intense atmosphere. So he
[17:01] Speaker 2: and his colleagues called this out. I mean, they went
[17:04] Speaker 2: to The New York Times and they said, this is
[17:06] Speaker 2: what happened. And we're not commenting on any of these cases,
[17:09] Speaker 2: whether they were good, bad, or indifferent, whether any of
[17:11] Speaker 2: these people did or did not deserve to be deported
[17:14] Speaker 2: or any of these habeas corpus petitions had merit or not.
[17:16] Speaker 2: It was just that the pattern of noncompliance or partial
[17:19] Speaker 2: compliance or delayed compliance gummed up the rule of law
[17:23] Speaker 2: to an extent that we thought it was really kind
[17:25] Speaker 2: of critical and we needed to make some comment about it.
[17:27] Speaker 2: So that's what they did. And I just want to say,
[17:29] Speaker 2: and it shouldn't matter that I have to say this,
[17:31] Speaker 2: but I just think to put it in context, you're
[17:34] Speaker 2: talking about a judge who probably in terms of his
[17:36] Speaker 2: particular case background and outlook as the polar opposite of Reyes.
[17:40] Speaker 2: He's a white man. He was a clerk for Justice Scalia.
[17:43] Speaker 2: He was very conservative. He used to teach at Notre Dame.
[17:46] Speaker 2: One of his prized pupils was Justice Barrett. This is
[17:49] Speaker 2: a guy who, from a philosophical standpoint, you know, is
[17:51] Speaker 2: really seen as one of the stronger and more impressive
[17:54] Speaker 2: conservative voices in the country in the federal judiciary. And
[17:58] Speaker 2: he was the guy who made the statement along with
[18:01] Speaker 2: some of his colleagues and didn't make any difference. I mean,
[18:03] Speaker 2: he got vilified. He got called a Radical and, you know,
[18:07] Speaker 2: out of control. And then the judicial misconduct complaint got
[18:11] Speaker 2: filed against them with the 8th Circuit. The defense that
[18:14] Speaker 2: they had, and he said this actually when they spoke
[18:16] Speaker 2: to the newspaper, was we're not commenting on cases. Judges
[18:19] Speaker 2: can't comment on cases. We're not commenting on whether the
[18:22] Speaker 2: administration's immigration policies are correct or not. We're not making
[18:26] Speaker 2: that comment either. We're just talking about what happened to
[18:28] Speaker 2: our court during this period of time. And we just
[18:30] Speaker 2: thought it was important that we say something about it.
[18:33] Speaker 2: And I don't think there's anything wrong with that. Every
[18:37] Speaker 2: judicial ethics expert that I interact with, we have kind
[18:40] Speaker 2: of a little club of ethics geeks and we talk
[18:42] Speaker 2: to each other all the time. And none of us
[18:44] Speaker 2: think that there was any misconduct here. You know, you
[18:47] Speaker 2: could say, well, was it the best exercise of judgment
[18:50] Speaker 2: to do this in this particular way? I have no
[18:52] Speaker 2: comment on that. But there's no question in my mind
[18:55] Speaker 2: that there was not an ethics violation. It was totally
[18:58] Speaker 2: within their rights under the Code of Conduct as it
[19:01] Speaker 2: reads and under the Advisory guidance has been issued by
[19:04] Speaker 2: the Judicial Conference of the United States since then. So
[19:07] Speaker 2: then what's this about? Why did they file the complaint?
[19:10] Speaker 2: I think they filed the complaint because they wanted to
[19:12] Speaker 2: make an example of these judges. It was kind of
[19:13] Speaker 2: the same reason, I think, that they sued people individually
[19:16] Speaker 2: in Maryland rather than taking the administrative route to the
[19:19] Speaker 2: Fourth Circuit. Its intimidation effect, I think, is intended. I
[19:23] Speaker 2: think that's very regrettable. I don't think it's right.
[19:26] Speaker 1: It sort of goes along with what now Attorney General
[19:29] Speaker 1: Todd Blanch has said a while back that we're at
[19:32] Speaker 1: war with federal judges. It seems like they're taking a
[19:35] Speaker 1: confrontational approach.
[19:37] Speaker 2: No, I think that's right. And I always try, I've
[19:40] Speaker 2: learned to do this my whole life, to try to
[19:42] Speaker 2: see things from the other side. And I think they
[19:45] Speaker 2: feel that the president's trying to do these things. They
[19:48] Speaker 2: are trying to do these things to bring the country
[19:50] Speaker 2: around to the way they want it to be, and
[19:52] Speaker 2: particularly in the area of immigration enforcement. And they see
[19:56] Speaker 2: the federal courts as getting in the way. And they
[19:58] Speaker 2: feel like they have to take a muscular approach to
[20:01] Speaker 2: efforts that they see as being interference by the federal
[20:03] Speaker 2: courts in that approach. I can buy that up to
[20:06] Speaker 2: a point where, you know, the legal arguments you make
[20:08] Speaker 2: can be assertive. You can try to get the most
[20:11] Speaker 2: out of the law that exists and push it as
[20:12] Speaker 2: far as you can do in an ethical manner. There's
[20:15] Speaker 2: nothing wrong with that. I mean, they want to be
[20:17] Speaker 2: zealous advocates for that point of view, you know, a
[20:19] Speaker 2: hard line on immigration law enforcement. They have a right
[20:22] Speaker 2: to do that. I mean, the president largely campaigned on that.
[20:25] Speaker 2: So I get that. But they don't get to ignore
[20:28] Speaker 2: the rules. They don't get to ignore court orders. And
[20:32] Speaker 2: in my opinion, they don't get to launch ad hominem
[20:35] Speaker 2: attacks on judges. I know Judge Schultz a little bit,
[20:37] Speaker 2: and I know what kind of guy he is. And
[20:38] Speaker 2: it was just so interesting to read the administration's attacks
[20:41] Speaker 2: on him, that he was kind of a wild-eyed left-wing activist.
[20:45] Speaker 2: And I just sort of thought, have you ever met
[20:46] Speaker 2: this guy? I mean, not only is it not true,
[20:49] Speaker 2: but it's kind of laughable when you think about it.
[20:51] Speaker 2: He's very close with Justice Kavanaugh. They played basketball together.
[20:55] Speaker 2: He was the chief judge of the intelligence court. I mean,
[20:58] Speaker 2: this is not a wildlife radical either. It's a very
[21:00] Speaker 2: kind of mainstream guy, you know, and it doesn't matter.
[21:03] Speaker 2: I mean, it's kind of fact-free criticism.
[21:06] Speaker 1: Well, I really appreciate getting the insights of someone who
[21:10] Speaker 1: was on the bench for so long. Thanks so much, Judge.
[21:14] Speaker 1: That's former Judge Jeremy Fogle of the United States District
[21:17] Speaker 1: Court for the Northern District of California. Politically appointed Justice
[21:22] Speaker 1: Department lawyers have submitted more than a dozen court filings
[21:27] Speaker 1: in federal trial and appeals courts that haven't been signed
[21:30] Speaker 1: by any career attorneys, a move former department officials say
[21:35] Speaker 1: is unusual. The increased involvement of attorneys in the Justice
[21:39] Speaker 1: Department's so-called front office in major litigation represents a departure
[21:44] Speaker 1: from prior administrations. The change comes as the Justice Department
[21:49] Speaker 1: faces higher attrition of its career workforce and advances arguments
[21:54] Speaker 1: expanding executive power. Joining me is Bloomberg Law reporter Suzanne Moniak,
[22:00] Speaker 1: who's written about this. Tell us about the exodus of
[22:04] Speaker 1: career lawyers since, you know, Trump returned to the White
[22:08] Speaker 1: House and the uptick in political appointees.
[22:12] Speaker 4: In the last year and a half, we've seen a
[22:14] Speaker 4: significant amount of attrition of the career workforce really across
[22:17] Speaker 4: the government, but we've really also seen it at the
[22:19] Speaker 4: Department of Justice. There have been a lot of concerns
[22:21] Speaker 4: that the department isn't as independent as it used to be,
[22:23] Speaker 4: that it's pursuing more political causes that are personal to
[22:27] Speaker 4: the president. And between that and a lot of other
[22:30] Speaker 4: forced workforce cuts, we've saw a lot.
[22:33] Speaker 3: Of career veteran attorneys leave the department.
[22:35] Speaker 4: Because career hiring is more of a challenge, both bureaucratically
[22:39] Speaker 4: and just in terms of enticing some of those people
[22:42] Speaker 4: with those backgrounds to come into this administration. We've seen
[22:44] Speaker 4: a growth in the Justice Department's so-called front office, which
[22:48] Speaker 4: is where they house political lawyers, as well as some
[22:51] Speaker 4: career lawyers who are temporarily detailed there. Those people are easier,
[22:55] Speaker 4: quicker to hire, and may in some cases be more
[22:57] Speaker 4: willing to pursue more political arguments.
[23:00] Speaker 1: Before the Trump administration, what was the usual role of
[23:04] Speaker 1: political appointees in the Justice Department?
[23:07] Speaker 4: To be sure, political appointees at DOJ were not uninvolved
[23:11] Speaker 4: in cases. We saw political lawyers may sometimes present arguments
[23:15] Speaker 4: in court cases and big cases that may be of
[23:18] Speaker 4: particular priorities to this administration. We may see them present
[23:22] Speaker 4: cases just maybe because they want the experience of doing
[23:25] Speaker 4: an argument as a younger lawyer. And of course, we
[23:27] Speaker 4: will always see political appointees' names listed above the signature
[23:31] Speaker 4: block and briefs. But we generally wouldn't have them. From
[23:34] Speaker 4: speaking with former Justice Department lawyers, they tell me that
[23:37] Speaker 4: it's atypical for political appointees to be fully the ones
[23:40] Speaker 4: drafting multiple briefs in major cases, that usually the nonpartisan
[23:46] Speaker 4: career lawyers would have a bigger role in that.
[23:48] Speaker 1: And politically appointed Justice Department lawyers have submitted more than
[23:52] Speaker 1: a dozen court filings in federal trial and appeals courts
[23:57] Speaker 1: that haven't been signed by any of the career attorneys.
[24:01] Speaker 1: And In the golf course case, Judge Reyes brought this up.
[24:06] Speaker 3: That's right.
[24:07] Speaker 4: We've seen a little bit of an uptick in court filings,
[24:09] Speaker 4: really in cases across the board, where there are no
[24:12] Speaker 4: nonpartisan career lawyers signed on. That may be for a
[24:15] Speaker 4: number of reasons. But we had seen one in this
[24:18] Speaker 4: golf course case that you mentioned, challenging President Donald Trump's
[24:22] Speaker 4: potential changes to a historic public golf course here in D.C.
[24:26] Speaker 4: And Judge Honoré, as who's overseeing that case, specifically called
[24:29] Speaker 4: it out and actually in the courtroom, turned to counsel's
[24:31] Speaker 4: table and addressed the lawyers and said, please raise your
[24:34] Speaker 4: hand if you'd be willing to sign this brief, which
[24:37] Speaker 4: had only been signed by Stanley Woodward, who is the
[24:40] Speaker 4: associate attorney general.
[24:41] Speaker 3: That's the third ranking official of the department.
[24:43] Speaker 4: Fairly unusual to have someone so high up be the
[24:46] Speaker 4: one submitting briefs without the backing of career lawyers. It
[24:50] Speaker 4: was a very tense moment in the courtroom. Stanley Woodward
[24:53] Speaker 4: had signed the brief immediately pushed back and then actually
[24:56] Speaker 4: directed his attorneys not to respond to the judge, not
[24:59] Speaker 4: to do it. The judge then turned to them and said,
[25:01] Speaker 4: this is a direct order. Ultimately, the judge decided not
[25:04] Speaker 4: to pursue that. There was a moment where she said
[25:06] Speaker 4: that they could brief it. And then at the end
[25:08] Speaker 4: of the hearing, she came back and said, after speaking
[25:10] Speaker 4: with my clerks, I've decided to withdraw this request. It
[25:13] Speaker 4: was a very tense moment that really does show that
[25:16] Speaker 4: we are seeing judges taking notice of the increased role
[25:19] Speaker 4: that political lawyers are playing in court.
[25:21] Speaker 1: What are the possible reasons why a career attorney might
[25:26] Speaker 1: not want to sign on to a brief?
[25:29] Speaker 4: When speaking with lawyers for this story, it was suggested
[25:32] Speaker 4: to me by one person familiar with the situation that
[25:36] Speaker 4: perhaps it wasn't that the career lawyers are saying that
[25:38] Speaker 4: they don't want to sign a brief, but rather that
[25:40] Speaker 4: the politicals are kind of preemptively shielding them. And that
[25:44] Speaker 4: may or may not be the case, at least in
[25:46] Speaker 4: some instances. Generally speaking, I think it is rare for
[25:50] Speaker 4: a career lawyer to not want to sign a brief.
[25:52] Speaker 4: Part of their job in the government is to, you know,
[25:55] Speaker 4: sometimes take positions that may not align with their own
[25:57] Speaker 4: personal politics. That's why they're nonpartisan attorneys whose tenures at
[26:01] Speaker 4: the department tend to span multiple administrations. But one instance
[26:05] Speaker 4: in which we might see political sign a brief might
[26:07] Speaker 4: be for more, quote unquote, controversial arguments.
[26:10] Speaker 1: You said that in your piece that sometimes these briefs
[26:15] Speaker 1: that are signed only by the political appointees have a
[26:18] Speaker 1: different tone than other government filings. So explain that tone.
[26:23] Speaker 4: In a couple of instances, we've seen a less professional
[26:27] Speaker 4: government sounding tone coming from the Justice Department in these briefs.
[26:31] Speaker 4: I think the most maybe relevant example for this was
[26:34] Speaker 4: in the White House ballroom case where we saw a
[26:37] Speaker 4: DOJ political lawyer-led brief accuse the nonprofit historic preservation group
[26:42] Speaker 4: that had been challenging the White House ballroom changes in
[26:45] Speaker 4: the case of having Trump derangement syndrome. And the brief
[26:48] Speaker 4: itself really read in a similar tone to what we
[26:51] Speaker 4: see from President Donald Trump on Truth Social or other
[26:53] Speaker 4: social media posts. And that's just a very atypical tone
[26:56] Speaker 4: for a government brief. Usually they would read boring.
[27:00] Speaker 1: We talked about the golf course case where the third
[27:04] Speaker 1: highest official, Stanley Woodward, was arguing in the courtroom. And
[27:08] Speaker 1: are you seeing more instances of political lawyers appearing in
[27:12] Speaker 1: court as well?
[27:13] Speaker 4: While we haven't done a full statistical analysis, anecdotally, it
[27:16] Speaker 4: does look that way, that we're seeing this happening so
[27:19] Speaker 4: often in different kinds of cases.
[27:20] Speaker 3: We've seen it in the ballroom case. We've seen it in.
[27:24] Speaker 4: The case over the Kennedy Center, as well as in
[27:27] Speaker 4: a number of cases over the Trump administration's mandatory detention
[27:31] Speaker 4: policy for immigrants.
[27:33] Speaker 3: So we've just seen it in a number of issues.
[27:35] Speaker 4: And lawyers I spoke to said that they had also
[27:37] Speaker 4: noticed an uptick in the number of arguments done by politicals.
[27:40] Speaker 4: And of course, there's been an uptick in the volume
[27:41] Speaker 4: of litigation in general as.
[27:43] Speaker 1: The former Justice Department lawyers you spoke to, I mean,
[27:46] Speaker 1: does this concern them that there's this uptick in, you know,
[27:50] Speaker 1: action in the courtroom and on briefs by political appointees?
[27:56] Speaker 4: Yes, a number of them raise concerns about this phenomena
[27:59] Speaker 4: as potentially indicative of further erosion of independence of the judiciary.
[28:04] Speaker 4: I think they maybe largely felt that it undermines the
[28:07] Speaker 4: credibility of arguments that the Justice Department is making. if
[28:10] Speaker 4: there are no career attorneys signed on, maybe regardless of
[28:13] Speaker 4: whether or not there was some involvement by career attorneys
[28:16] Speaker 4: behind the scenes, or maybe it's not that they refused
[28:18] Speaker 4: to sign, but just that the front office is taking
[28:20] Speaker 4: the lead on a more controversial issue. Regardless, I think
[28:24] Speaker 4: I did get the sense from speaking to people that
[28:26] Speaker 4: that was kind of the overarching concern. And that was
[28:28] Speaker 4: something that Judge Reyes actually explicitly raised in that hearing
[28:32] Speaker 4: during that tense exchange where she said herself that she
[28:35] Speaker 4: saw that as having less credibility when there are no
[28:37] Speaker 4: career lawyers on it.
[28:38] Speaker 3: And that's why she was concerned about it.
[28:40] Speaker 1: You also wrote about Judge Reyes. I didn't realize she
[28:43] Speaker 1: had such an interesting backstory. Tell us a little bit
[28:47] Speaker 1: about Judge Reyes.
[28:48] Speaker 4: Judge Reyes is a Joe Biden appointee who's been on
[28:50] Speaker 4: the court for about three and a half years now.
[28:53] Speaker 4: And she's very much known for her very direct style
[28:56] Speaker 4: and approach in court. What we saw from her in
[28:59] Speaker 4: this golf course case is not necessarily out of character
[29:02] Speaker 4: for her in that she is somebody who I think
[29:05] Speaker 4: does not tolerate people who show up say, unprepared to
[29:09] Speaker 4: court or making inconsistent statements in court. One of her
[29:12] Speaker 4: former colleagues, Ab Williams and Connolly, now a UVA law professor,
[29:15] Speaker 4: had said to me specifically that she's someone who doesn't
[29:17] Speaker 4: want to waste time.
[29:19] Speaker 3: She wants to be efficient with cases.
[29:21] Speaker 4: And I think that's something we've seen in past cases
[29:22] Speaker 4: where she's been annoyed at lawyers for what she sees
[29:25] Speaker 4: as unproductive lawyering at the incredibly high billing rate to
[29:29] Speaker 4: their client. So she's just very no-nonsense, no-fuss, and is
[29:34] Speaker 4: somebody who is not going to tolerate a situation where
[29:36] Speaker 4: the government says one thing and does another.
[29:38] Speaker 3: She wants to get to the bottom.
[29:39] Speaker 1: Of it. And she has some firsts next to her name.
[29:43] Speaker 4: She's the first female Hispanic and first openly gay judge
[29:47] Speaker 4: at Washington's federal district court.
[29:50] Speaker 1: I thought it was cute. She keeps an arcade machine
[29:53] Speaker 1: in her office?
[29:54] Speaker 2: Yes.
[29:55] Speaker 3: That's right. In her chambers can play Pac-Man.
[29:58] Speaker 4: She made a reference to it during a hearing earlier
[30:01] Speaker 4: this month that an official who was testifying and had
[30:03] Speaker 4: to step out of the room for, you know, while
[30:05] Speaker 4: others testified, joked that he could play on her arcade
[30:08] Speaker 4: machine in her chambers.
[30:09] Speaker 1: So this isn't the first time the golf course case
[30:13] Speaker 1: isn't the first time that she's handled a high profile case.
[30:17] Speaker 1: She ruled in the transgender military ban case.
[30:23] Speaker 3: That's right.
[30:23] Speaker 4: Two of the cases where she ruled against the Trump
[30:26] Speaker 4: administration on pretty major policies were on the policy to
[30:29] Speaker 4: ban transgender service members from serving in the military.
[30:33] Speaker 3: She ruled against that.
[30:34] Speaker 4: She also ruled against the administration's effort to terminate temporary
[30:38] Speaker 4: protected status, which are temporary immigration protections for Haitians.
[30:42] Speaker 3: That one was ultimately reversed by the U.S. Supreme Court.
[30:45] Speaker 4: Additionally, she had the criminal case for Charles Littlejohn, who, uh,
[30:50] Speaker 4: pleaded guilty to leaking Donald Trump's tax information to The
[30:54] Speaker 4: New York Times. And in that case, she gave him
[30:56] Speaker 4: the maximum sentence and saw what he'd done to Trump
[30:59] Speaker 4: as a problem for democracy.
[31:01] Speaker 1: Has she been attacked by the Trump administration then before
[31:04] Speaker 1: the golf course case?
[31:06] Speaker 4: Yes, this is not her first time in their crosshairs.
[31:10] Speaker 4: She also faced a DOJ-led misconduct complaint for a comment
[31:14] Speaker 4: she made in the transgender military case. They felt that
[31:17] Speaker 4: she was improperly questioning the Justice Department lawyer with some
[31:21] Speaker 4: tough interrogations.
[31:23] Speaker 1: This Justice Department really has set up an antagonistic relationship
[31:27] Speaker 1: with federal judges. A really interesting story and great reporting, Suzanne.
[31:32] Speaker 1: Thanks so much. That's Bloomberg Law Reporter Suzanne Moniak. And
[31:36] Speaker 1: that's it for this edition of the Bloomberg Law Show. Remember,
[31:39] Speaker 1: you can always get the latest legal news on our
[31:41] Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
[31:46] Speaker 1: and at www.bloomberg.com slash podcast slash law. And remember to
[31:52] Speaker 1: tune into the Bloomberg Law Show every weeknight at 10 p.m.
[31:55] Speaker 1: Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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