Lying Lawyers

There was a rather fascinating panel discussion at the Society for the Rule of Law summit this past week. [see a summary here ] Three retired federal judges — Paul Grimm (ex-D MD), Nancy Gertner (ex- D MA), and Michael Luttig (ex- CA4), moderated by Benjamin Wittes of Lawfare — spoke for an hour about what Judge Luttig called “the most important moment in all of American history . . . when the nation needs the federal judiciary more than it has ever needed it, and will ever need it again.”

Judge Luttig[1] described the crisis this way:

Every day of the week, for the past 10 months, [district court] judges are facing the President of the United States and Attorney General of the United States… lying to their face. Lying to the judges. The prosecutors are lying to the federal courts. Meanwhile, outside the courtroom, the President of the United States, and the Attorney General of the United States, are trashing the federal courts. Trashing the individual judges. Calling them every name in the book. Never in American history has this ever happened.

The arguments that are being made… by the Department of Justice attorneys under Pam Bondi are contemptuous. Not just of the Constitution and the rule of law, but contemptuous of the federal courts, and even, if not especially, contemptuous of the individual judges that are hearing the cases. Not only has this never happened in all of American history, not one argument, but the arguments that these people are making to the federal courts has ever been made in American history, dripping with the contempt that these arguments are.

Judge Gertner put it this way:

It’s not just an issue of the arguments they’re making. They’re lying. They are misrepresenting things. One of the things I thought after Trump was elected, and when the political debate made it into the courts, one of the things we know about courts is that there’s a level of civility. That the lawyers, true to their oaths, will not lie, will not misrepresent, will not say they do x and do y. What is the most shocking of all — at a time when you’re always shocked — is that that’s not true. That’s not true with respect to the Department of Justice lawyers. They will say x, they will do y, and recent whistleblower accounts suggest that they are openly and brazenly misrepresenting to the court. The system fractures what it happens.

If you think they’re exaggerating – “Trump Derangement Syndrome!!” – here is the study Judge Gertner cited, from the Michigan Law School’s “Just Security” project, detailing 43 cases where federal court judges have called out the DOJ for having made serious misrepresentations – including a substantial number of outright, bald-faced lies – to the courts.

I know . . .  what else is new?  “Dog bites man.”  No point getting worked up about it, since it’s only #6, or #17, on the ranked list of threats to constitutional norms and the constitutional order. But even if it’s only for the future historian compiling a history of the Trump Era, it is worth noting.

And on a considerably more optimistic note, the panelists expressed a number of interesting thoughts on what they all agreed has been a “spectacular” performance by federal district court judges of all political stripes in the face of this onslaught. A ray of hope in this dismal prospect. They also discussed at length the question of whether or not the Supreme Court has given the lower courts adequate support for their efforts – a subject I’ll leave for a future post.

[i] Judge Luttig was appointed to the 4th Circuit by George HW Bush in 1991, and I think it is fair to say that he is as rock-ribbed a Republican – in the old, honorable sense – as they come, and also that he is boiling with rage at the Administration’s many-fronted attack on the rule of law.

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