Judges’ Dilemma – The New York Times

Lawyers for the federal government are saying some astonishing things in court. Yesterday, in a Maryland courtroom, a deputy assistant attorney general told a judge that the government is following her order to facilitate the return of a mistakenly deported Maryland man. If the man were to show up at a port of entry, the lawyer said, the government would not turn him away.

The problem is the man, Kilmar Armando Abrego Garcia, has no way to get to the border on his own. He has been held in a brutal prison in El Salvador since mid-March — because the government deported him there by mistake. Yesterday, the judge rebuked the government for doing nothing to facilitate Abrego Garcia’s return.

Scenes like this have played out in courtrooms around the country since President Trump took office. Defending the deportations of more than 200 Venezuelans to the same Salvadoran prison last month, the same deputy assistant attorney general told a judge that the government had complied with his order to turn flights around in the air. “It seems to me that there is a fair likelihood that that is not correct,” said the judge in that case, James Boasberg, “and in fact, that the government acted in bad faith.”

Government lawyers called off the prosecution of New York’s mayor by saying he couldn’t enforce immigration laws while the charges were pending (even though he was clearly doing so). They also said the E.P.A. was rife with fraud and criminality but couldn’t come up with any proof.

In today’s newsletter, I’ll explain how the administration’s lawyers have created a conundrum for the judiciary.

The Maryland case

In 2019, an immigration judge ruled that Abrego Garcia, who had come to the U.S. from El Salvador, should not be sent back because there was a risk that gang members there might torture or kill him. But last month, by the government’s own admission, it deported him by accident.

The federal judge in Maryland, Paula Xinis, ordered the government to facilitate Abrego Garcia’s return. Last week, the Supreme Court agreed with that part of her order, directing the government to share what it could about the steps it was taking to do so. It was a mild directive — but an important one — for the Trump administration to follow the law and be forthright in court.

But then Trump said that he had no intention of bringing back Abrego Garcia. That leaves the Justice Department with a difficult position to defend. It’s hard to do a good job as a lawyer when your client wants you to make an argument with little legal or factual basis.

Yesterday, Judge Xinis ordered officials to answer questions about the case over the next two weeks. She also mentioned the possibility of holding the government in contempt of court.

Dilemma for the bench

Let’s put aside the policies behind the Justice Department’s recent arguments in court. Government lawyers have prided themselves on the high quality of their briefs and oral arguments for both Republican and Democratic presidents. The Trump administration is deviating from that tradition in a way that’s unprecedented. Some of its new legal claims are not contested positions on the judicial battlefield — they are occasionally absurd on their face.

What are courts supposed to do about this? Judges have tools for addressing the problem of lawyering they’re suspicious of, beginning with pointing it out. As a last resort, they can hold lawyers or their superiors in contempt.

But penalizing the Justice Department is fraught, given the Trump administration’s combative stance toward the judiciary. “If courts frequently call out government falsehoods or bad faith, and the executive branch ignores or dismisses these findings, the judiciary’s authority is diminished,” Alan Rozenshtein, a University of Minnesota law professor, wrote recently. But if courts don’t call out the falsehoods, he said, they may lose “credibility with the public.”

Dismayed judges

The first thing judges can do about dubious lawyering is to build a record of it. Judges have been calling out the Justice Department’s approach to defending Trump’s executive orders. The government’s representations of the facts were “highly misleading, if not intentionally false,” one judge wrote in March after it stopped work at the Consumer Financial Protection Bureau, which Congress created.

No matter what a client demands, lawyers have an ethical responsibility to be honest in court. Yet judges have had to remind Justice Department lawyers “to make truthful representations,” as another judge wrote.

In the past, most presidential administrations had high win rates in court for actions involving federal agencies — close to 70 percent before Trump’s first term in office. By contrast, since Trump took office in January, the government is winning only about 30 percent of cases so far, with courts stopping 58 executive orders and allowing 26 to go forward, according to the group Just Security.

The Supreme Court weighs in

The Supreme Court has begun to play its role as the ultimate arbiter. Earlier this month, in the case of the Venezuelan deportees, Boasberg was inquiring into whether the government had ignored his order to halt the flights they were on. The Supreme Court intervened, finding, in a 5 to 4 vote, that the case did not belong in his courtroom. The majority said nothing about the government’s irregular conduct in response to Boasberg.

“That a majority of the Court now rewards the Government for its behavior,” Justice Sonia Sotomayor wrote in a dissent, “is indefensible.”

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SPORTS

N.B.A.: The Orlando Magic and Golden State Warriors are through to the first round of the playoffs after winning their first Play-In Tournament games.

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Now you can see inside, with photographs from our colleague Stephen Hiltner.

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