Skeptical judges increasingly question administration’s veracity

In recent days, a Trump-appointed judge in Oregon declared the president’s decision to send the National Guard to Portland was “simply untethered to the facts.”

In Tennessee, an Obama-appointed judge ruled that Kilmar Abrego García had presented enough evidence to pursue a rare claim of “vindictive prosecution.” On Thursday, Judge April M. Perry in Chicago, appointed by President Joe Biden, said she had seen a “lack of credibility” from the Department of Homeland Security.

Affidavits from the agency’s officials, “point to the arrest of people who did not actually commit a crime. That undercuts the persuasive value of your argument,” she told attorneys for the administration.

As those admonishments have rained down from federal judges, White House officials have responded with increasingly fervid rhetoric. In response to the Portland ruling, which blocked President Donald Trump from deploying the National Guard in the city, the president’s top domestic policy aide, Stephen Miller, went on social media to accuse Judge Karin J. Immergut of engaging in a “legal insurrection.”

The intensity of the recent exchanges speak to the growing exasperation felt by many judges. And the provocative language has evoked concerns that the White House might decide to defy courts that block his decisions.

Attorney General Pam Bondi told the Senate earlier this week that the Justice Department has not defied court orders.

Miller’s heated rhetoric, however, suggests the White House may see the situation differently.

“This is an organized terrorist attack on the federal government and its officers, and the deployment of troops is an absolute necessity to defend our personnel, our laws, our government, public order and the Republic itself,” Miller wrote in his response to Immergut’s ruling.

Taken to an extreme, that tension could threaten fundamental parts of the American legal system.

In the more immediate term, the legal experts said, the increasingly adversarial relationship could reshape how prosecutors are viewed in courtrooms, making it harder for the federal government to convince judges that it is telling the truth.

“What is happening now, over and over again, they are making arguments that the courts are finding untruthful, they are finding disingenuous,” said Patrick J. Cotter, a former federal prosecutor. “They are destroying this bank account of credibility and trust that generations of Justice Department attorneys have earned.

The Justice Department has said that the Trump administration has been sued more than 420 times, with lower courts issuing more than 90 rulings that at least temporarily blocked their policies from going into effect.

“This Department of Justice will continue to fight in court to defend President Trump’s lawful Article II authority against attacks from far-left activist judges who seek to undermine his agenda,” a Justice Department spokesperson said.

A spokesperson for the White House said: “The Trump Administration will continue sharing the truth with the American people — including highlighting the unprecedented number of legal challenges and unlawful lower court rulings from far-left liberal activist judges.”

“Despite this judicial activism, President Trump’s policies have been consistently upheld as lawful by the Supreme Court,” White House spokeswoman Abigail Jackson said.

Across the country, scores of federal prosecutions are playing out in courtrooms as they typically would, with career prosecutors presenting cases to judges and juries with little fanfare and few abnormalities.

The picture is very different in high-profile cases that have become flash points in the relationship between the administration and the judiciary.

The tensions began early on. In the first months of the new administration, for example, one D.C. judge accused federal prosecutors of being “unable to fill in basic details” about the legal rationale behind the president’s sanctions against a law firm. Another judge in Virginia, scoffed at evidence the government offered in an immigration case claiming one couple were members of a violent gang.

“I expect more from the government than this kind of very shoddy work,” U.S. District Judge Leonie M. Brinkema told the Justice Department lawyer in March.

More recently, over the weekend, Immergut blocked the administration from deploying National Guard troops in Portland, saying the president was “ignoring the facts on the ground.”

And on Thursday, Perry also issued an order partially blocking Trump’s deployment of the National Guard to Chicago, saying when she did so that she needed to make “a credibility determination.” The government’s “perception of events are simply unreliable,” she said.

The administration filed a notice of appeal of Perry’s decision late Thursday. Jackson, the White House spokeswoman, said after Perry’s ruling that “we expect to be vindicated by a higher court.”

The president and his allies, meanwhile, have publicly derided judges as activists and corrupt political actors — even judges that Trump appointed during his first term.

“So, I wasn’t served well,” Trump, who incorrectly identified the judge as a man, said over the weekend when asked about Immergut’s ruling. “That judge, he ought to be ashamed of himself.”

Those sorts of comments can put at risk an important advantage that the government has historically enjoyed in court — a large degree of presumed credibility in front of judges, lawyers interviewed said. Judges may not agree with prosecutors’ cases, but they generally accept that the attorneys are presenting truthful facts to the court and are playing by the rules.

By contrast, defense attorneys must often meet a higher threshold to prove to judges that they are credible and may, for example, have to face more scrutiny when introducing evidence in court.

“The prosecutors who appear regularly do build reputations and relationships with judges,” said Jessica Roth, a former federal prosecutor and professor at Cardozo School of Law at Yeshiva University. “That is one of the aspects of the practice that helps ensure professionalism — which is the knowledge that the lawyers involved are repeat players and will be seeing each other again.”

But Attorney General Pam Bondi has fired scores of career prosecutors, arguing they would undermine Trump’s priorities. Bondi has put politically appointed Justice Department officials in front of judges to argue some of the administration’s most high-profile cases. Many of these appointees have little prosecutorial experience and no prior interactions with the judges.

Bondi and other senior administration officials have also made public comments about cases that go beyond what Justice Department officials traditionally have said.

Federal guidelines say, for example, that administration officials should not make public comments about cases outside of court because doing so could impugn the reputations of people who might not have done anything wrong and because they could compromise the impartiality of a jury.

The administration’s penchant for ignoring that sort of restriction has begun to complicate its positions in court.

On Friday, for example, U.S. District Judge Waverly Crenshaw in Tennessee ordered discovery and an evidentiary hearing to determine whether the Justice Department had brought its criminal case against Abrego as a means of retaliation. The government charged Abrego, a Salvadoran national who was a construction worker in Maryland, with human trafficking.

There is “some evidence that the prosecution against him may be vindictive,” the judge wrote in his opinion. Comments that administration officials made outside of court, “raise cause for concern,” he wrote.

The fate of the Trump administration’s most high-profile and widely consequential litigation is likely to be decided by the Supreme Court, with attorneys in the Justice Department’s solicitor general’s office arguing before the justices. Trump administration officials have expressed confidence that they will continue to win at the Supreme Court — where the president has racked up multiple victories this year. That might make them less concerned with activities in the lower courts.

But even if the administration does notch big wins at the high court, prolonged conflict between the Justice Department and federal judges could slow down the president’s litigation strategy and continue to reverberate long after Trump’s term ends.

The government has benefited from a reservoir of good will with judges, but “what we are seeing now over a series of cases is that reservoir being depleted,” Roth said. The result, she said, may be a “more general unwillingness to accept prosecutors at face value.”

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• Kim Bellware contributed.