"Trust That Had Been Earned Over Generations Has Been Lost in Weeks"

That’s from Magistrate Judge Zia Faruqui (D.D.C.) last week in In re: Search of One Device and Two Individuals. The context is the government’s request to seal a court order—see this post for more—and the government’s argument, in the process, “that courts must be highly deferential to the government’s determination that unsealing would impede its investigation.” But I take it that the judge’s sentiment would carry over into other decisions as well, especially if other judges take a similar view:

Blind deference to the government? That is no longer a thing. Trust that had been earned over generations has been lost in weeks. Numerous career prosecutors have had to resign instead of taking actions that they believe violated their oath of office, or worse, were fired for upholding that oath. See, e.g., Tom Dreisbach, Why a DO J prosecutor resigned, telling coworkers and bosses ‘you serve no man’, NPR (Mar. 20, 2025) (noting that seven federal prosecutors resigned from Justice Department due to conflicts between administrative directives and their ethical and legal obligations); Glenn Thrush & Adam Goldman, Justice Dept. Fires Prosecutors Who Worked on Trump Investigations, N.Y. Times (Jan. 27, 2025) (stating that more than a dozen prosecutors were dismissed in “an egregious violation of well-established laws meant to preserve the integrity and professionalism of government agencies”). On the flip side, Department of Justice leaders have decried criminal investigations from the prior administration as ranging from witch hunts to illegal. See, e.g., Spencer S. Hsu, Keith L. Alexander & Tom Jackman, Interim D.C. U.S. attorney Ed Martin launches probe of Jan 6. prosecutions, Wash. Post (Jan. 27, 2025) (reporting that Justice Department is reviewing Jan. 6 prosecutors for “ruthlessly” prosecuting more than 1,500 individuals which was “an unprecedented, third-world weaponization of prosecutorial power.”).

So which prosecutors does the court defer to? The number continues to shrink. Judges have had to reprimand government attorneys for a lack of candor to the court, and worse, probe failures to comply with court orders. See, e.g., Jess Bravin, Trump Has a Trust Problem in Court, Wall St. J. (Apr. 28, 2025) (describing how several judges have expressed doubts about whether government officials are faithfully complying with court orders, with some taking actions such as “excoriat[ing]” officials and “hold[ing] the government in contempt.”); Mattathias Schwartz, White House Failed to Comply With Court Order, Judge Rules, N.Y. Times (Feb. 12, 2025) (discussing how Judge McConnell Jr.’s ruling that the Trump administration failed to comply with a court order to release billions of dollars in federal grants signals a rise in defiance against court rulings). These norms being broken must have consequences. High deference is out; trust, but verify is in.}

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