Newly-confirmed Attorney General Todd Blanche made headlines over the weekend for other, arguably, more alarming remarks and actions than what I am about to unpack. During an interview with Fox News on Sunday, Blanche refused to say that the Justice Department would act independently from the White House. On Friday, he and FBI Director Kash Patel openly campaigned for a Republican midterms candidate alongside President Trump.
But during his sprint of weekend public appearances, Blanche also acknowledged that he might take the Justice Department’s obviously-failing effort to seize election administration rights from states all the way to the Supreme Court. During an interview with Kristin Welker on NBC’s “Meet the Press” on Sunday, Welker asked whether Blanche would be willing to take his campaign to seize voter roll data from states to the Supreme Court. The DOJ’s efforts to sue for states’ voter roll data has been hit with 22 district court losses thus far, most recently in Nevada.
“We’ll see what happens,” Blanche said when asked about involving the high courtin the floundering campaign that began under fired Attorney General Pam Bondi. “Absolutely, it’s a possibility.”
As TPM’s Khaya Himmelman has been tracking for months now, the Justice Department is trying to force states to hand over unredacted voter roll data ostensibly to purge states’ voters rolls of supposed noncitizens, whom President Trump has claimed are illegally voting en masse for Democrats in federal elections. This is a widely debunked myth that Republicans and Trump tend to elevate when it is politically convenient for them, but the truth is, noncitizens voting in federal elections is vanishingly rare, in part because it is illegal and the consequences for doing so are already incredibly harsh.
That said, the Justice Department has sued 30 states overall to try to exert authority over state’s constitutional right to administer elections. It wants this data so it can run it through a faulty database — known to mistakenly identify eligible voters as ineligible — and purge supposed noncitizens from the rolls, which states already do on a regular basis to clean up voter rolls ahead of elections.
When NBC’s Welker asked Blanche if it’d suffered enough legal defeats to give up the crusade, Blanche said, “we’re not going to stop.”
“We’re relying on a statute passed by Congress that allows us, in the right circumstances, to review and get those voter rolls,” said Blanche. “So, no, we’re not going to stop doing what I think every American should expect us to do.”
So far, not one single federal judge has sided with the Trump Justice Department’s argument for why it should have access to the data — and we’re talking about judges who have been appointed by Democratic and Republican administrations alike. As Khaya has reported for TPM:
The data the DOJ is after includes sensitive information like drivers licenses and Social Security numbers — personal identifying information that the federal government is not entitled to.
To make its case, the DOJ has been relying on provisions in the Help America Vote Act (HAVA), the National Voter Registration Act (NVRA) and the Civil Rights Act of 1960 (CRA) to argue it is allowed to seize the information. But, as the courts have found time and time again, none of these statutes give the federal government the authority to demand state’s voter rolls.
From: Judges Across the Nation Agree: The DOJ’s Legal Argument for Seizing Voter Rolls Does Not Hold Up
By Khaya Himmelman | 07.02.26 | 2:00 pm
Fox News Host Makes Fun of U.S. Sailors Experiencing Mental Health Crisis
Amid reports of both a lack of supplies and food, and a deteriorating mental health situation onboard the U.S.S. Abraham Lincoln where multiple service members have tried to jump overboard, a Fox News host and former Marine made fun of the sailors, saying, “how weak are you?” The ship is stationed in the Arabian Sea, supporting the U.S.’s military operations in Iran and has not made a port call for over 200 days.
“I just do not understand the mentality,” Fox host Joey Jones said. “If this is a representation of who our military is now… we’re just Rome sitting here waiting to burn. We’ve got nothing left.”
Trump Defends Decision to Cut Exercises With South Korea
After directing Defense Secretary Pete Hegseth to “substantially reduce” the U.S. military’s ongoing drills with South Korea, citing his “very good relationship with North Korean leader Kim Jong Un,” Trump defended the decision in the Oval Office today. Trump argued that the U.S. should not be engaging in joint military exercises with South Korea if they’re not willing to help aid the U.S. in Trump’s ongoing, unpopular war with Iran.
“He said, ‘No, thanks,’” Trump said. “And I said … we have 39,000 soldiers over there guarding you from Kim Jong Un, your next-door neighbor, and you’re not going to help us on a very easy military operation in Iran? … I see. Well, why are we involved in helping you?”
“We’re guarding them from a country … that’s costing us billions and billions of dollars to protect not only them, but other countries,” he continued. “Look at NATO. We spend hundreds of billions of dollars protecting Europe from Russia, hundreds of billions, mostly from Russia, but from other things, too. And then they say, well, they don’t want to get involved with guarding the strait where they get most of their oil.”
If You Read One More Thing From TPM Today, Read This
The Justice Department’s Office of Legal Counsel (OLC) put out a new opinion earlier this week arguing that President Donald Trump can assert executive privilege over communications with advisors even if they do not work at the White House or within the government at all.
Experts tell TPM that the legal opinion is likely an effort from the Trump administration and his DOJ to preemptively interfere with congressional investigations that Democrats plan to launch if they manage to take control of one or both chambers after the 2026 midterms.
The Brief will be off tomorrow and early next week for a family vacation. I’ll see you Thursday Aug. 20!
Trump Administration Tries to Set the Terms of Post-Midterms Congressional Oversight
With the prospect of a possible Democratic-controlled House and/or Senate drawing near, the Office of Legal Counsel at the Department of Justice has provided the White House with an opinion declaring that a “private adviser” — defined as “anyone the President consults outside the Executive Branch” — may be covered by executive privilege if they play a role in “official presidential decisionmaking.” This, among other things, gives the White House the green light to attempt to flout congressional subpoenas for such individuals.
Asked about the OLC opinion by TPM yesterday, Democrats in Congress scorned it, and insisted it would not hamper their efforts. “This Mafia State Code of Silence has nothing to do with the American Constitution and it won’t stop Judiciary Dems from investigating this Administration’s rank corruption,” the Democrats on that committee said in a joint statement.
The OLC opinion is non-binding and is, merely, the administration’s position. Judges may, and likely will, disagree if executive privilege fights make contact with courts. Still, it may slow down accountability for a historically corrupt administration: Democrats had been planning to get individuals outside the administration to engage swiftly with their investigations, given Trump’s tendency to assert privilege over everything and anything involving White House aides in his first term.
The opinion is not solely aimed at blunting congressional oversight, however. As Lisa Rubin notes at MS NOW, the American Bar Association is seeking documents from Trumpworld figure Boris Epshtehyn to find out more about his role in the early Trump II effort to pressure law firms into cutting deals with the administration; ABA has challenged that pressure campaign, arguing it impinged on law firms’ First Amendment rights. The DOJ has argued those communications are covered by executive privilege. If reports about Epshtehyn’s role in the deals are correct, he fits the DOJ’s extremely broad description of a “private adviser,” as does anyone else who speaks with the president.
The OLC has laid the groundwork for various administration attacks on the law throughout this second term. In April, it released an opinion finding that the White House did not need to comply with a law requiring it to turn certain records over to the National Archives. (A judge said the opposite, and ordered the administration to do so.)
“OLC has lost all credibility and should be abolished,” Sen. Sheldon Whitehouse (D-RI) told us.
Hard-core Election Denialists Want an ‘Emergency’ Ahead of 2026
US President Donald Trump speaks with reporters after landing at Joint Base Andrews, Maryland, upon his return from Ohio where he attended the Patriot Games finals, on August 11, 2026. (Photo by Jim WATSON / AFP via Getty Images)
With right-wing activists beginning to abandon hope and acknowledge the SAVE Act’s poor chances of passing the Senate, various influencers have begun to consolidate around another big idea: Trump should declare a national emergency, allowing him to do … something.
This possibility surfaced this week when radio host Wayne Allyn Root urged Trump to do so, and Trump, in classic form, declined to rule anything out. “Stranger things have happened,” he said. “I’ll leave it at that.”
Trump’s dud of a speech in July about supposed issues with the 2020 election also stoked these fears, with his former lawyer Ty Cobb telling PBS that all Trump’s claims were intended as the “predicate that he needs to declare an emergency at or about the time of the elections.”
A draft executive order claiming to do just that surfaced earlier this year, obtained by TPM and other outlets.
As with all schemes by Trump and his allies to use the executive branch to screw with elections, this one runs up against the reality that the executive branch has no authority over elections. Various emergency orders could allow Trump to stoke a lot of chaos. But they do not empower him to seize election administration from the states.
Those who are rattled by this talk are not off base, however. Trump often says in public what he intends to do, the villain at the end of a spy thriller unnecessarily explaining his entire evil plan. Even if this specific scheme is half-baked, that Trump is entertaining it — and that he has entertained similar schemes before — should have us all ready for something.
“The nearer danger was never the proclamation,” writes James Sample, a professor of law at Hofstra University, as he picks apart Root’s understanding of the law. “It is counting and certifying, in a handful of counties, if control of a chamber comes down to a margin thin enough to litigate.”
Natalie Harp, aide to President Donald Trump, boards Air Force One before departing from Morristown Municipal Airport in New Jersey, on August 9, 2026. (Photo by Kent NISHIMURA / AFP via Getty Images)
You may have seen the news by now that the Trump White House has asked the Justice Department to consider bringing a new prosecution against the same man that the U.S. Attorney’s Office in Washington, D.C. just moved to dismiss felony charges against over the Lincoln Memorial Reflecting Pool saga.
Top congressional Democrats on Tuesday pushed back on a new memo from the Justice Department’s Office of Legal Counsel (OLC) arguing that President Donald Trump can assert executive privilege over communications with advisors even if they do not work at the White House or within the government at all.
“Executive privilege can apply to presidential communications with private advisers so long as the communications relate to official presidential decisionmaking, involve or reflect communications with the President or his direct advisers, and are confidential,” the OLC opinion, published on Monday, reads.
Sen. Bill Cassidy (R-LA) said he will support Todd Blanche’s nomination for Attorney General in a Senate floor speech Friday morning, effectively guaranteeing Blanche’s confirmation.
“Mr. Blanche is not perfect, and he will tell you this,” Cassidy said. “But the choice is not between perfection and Mr. Blanche. It is between Mr. Blanche and another acting attorney general who may not run the department effectively under President Trump and who indeed may not be as good as Mr. Blanche. This puts at risk the progress made fighting violent crime, human and drug trafficking and fraud, and this does not serve the American people well.”
Connor Moucka pled guilty to hacking and stealing data from more than 165 Snowflake customers, which net him and his accomplices more than $2.5 million in ransom payments.
Late last year, Department of Justice (DOJ) officials agreed to make a surprisingly damaging but until-recently little-noticed admission in court: the Trump administration had cancelledseveral grantsworth at least hundreds of millions of dollars largely because the money was slated to be sent to states that did not support the president in the last election.
“A primary reason” for withholding the funds in question was that “the grantee was located in a ‘Blue State,’” the DOJ wrote in a December 2025 court filing called a stipulation, an agreement entered into by the parties involved in a lawsuit agreeing to certain facts.
A review by TPM identified multiple other instances of the administration making the same concession in court. One, from July, was recently covered by the New York Times; TPM found other examples of the same concession, documenting that the administration’s lawyers have been open for several months now about having withheld money in part or entirely to punish the president’s perceived political enemies.
President Trump spent the weekend raging on Truth Social against Jeanine Pirro, the U.S. attorney for the District of Columbia, after the Justice Department wrote in a motion to dismiss the case that issues with the Lincoln Memorial Reflecting Pool were the result of bad refurbishing work — and not the product of vandalism, as it had previously alleged. Trump still insists vandalism is to blame.
In the Friday court filing, the DOJ acknowledged that Trump’s $14 million Reflecting Pool renovation was “hasty and botched.” In the filing, the DOJ said it was dropping its case against former Olympian David Hearn, whom the Justice Department accused of vandalism around the time that the renovation was getting bad press, including reports that the new lining was coming off in floating chunks. Hearn pleaded not guilty to the felony vandalism charges in D.C.’s Superior Court before the case was dismissed last week.
Trump has, aggressively, not reached the same conclusions as his DOJ and brought his online anger with Pirro to the airwaves on Monday during an unrelated Oval Office meeting, during which he suggested Pirro “choked” in building a proper case against Trump’s perceived enemies for the supposed sabotage.
“Frankly, I think she choked, because the judge was really vicious. Instead of going after the people that did it, the judge went after her and went after her department, and I guess she choked,” Trump said.
Shortly after Trump’s Oval Office outburst against Pirro, CNN published a report this afternoon that Trump is considering removing Pirro over the filing, citing two people familiar with Trump’s thinking. Per CNN:
The president is “furious” with Pirro, one of the sources said, telling CNN that he fumed about her all weekend. They added that based on his criticisms of her, they find it “highly likely she’s removed from her job.”
The other source, a senior administration official, said Trump was “blindsided” by Pirro’s court filing: “The president did not know beforehand that she was going to do that.”
Trump reportedly spoke to Pirro on Saturday and she blamed career officials in her office for the Friday filing (though her name is on the bottom of it). It was the around the same time that Trump was publicly unleashing on her via Truth Social.
“I disagree 100% with Jeanine Pirro, the U.S. Attorney for the District of Columbia, on the Reflecting Pool. I don’t know what she was thinking? To me, it was a pure case of VANDALISM,” he wrote.
Up until this point, Trump has had no reason to question Pirro’s work. As TPM reported earlier this year, Pirro was one of a group of U.S. attorneys who met with Trump earlier this year and received a verbal lashing from the president for not acting fast enough to carry out his personal retribution crusade. Shortly after that meeting, the Federal Reserve received grand jury subpoenas from Pirro’s office, related to testimony that then-Federal Reserve Chair Jerome Powell — one of Trump’s favorite perceived enemies — gave Congress last summer about a Fed building renovation.
Shortly after, Sen. Elissa Slotkin (D-MI) told the New York Times that she received requests for an interview with Pirro’s office; the FBI and others within the DOJ were at the time looking into Slotkin and other Democratic lawmakers who participated in a social media video aimed at reminding military service members that they shouldn’t obey illegal orders. Trump suggested that the Dems should be arrested and charged with “seditious behavior, punishable by death.”
Seems like the retribution-inspired honeymoon between the two might be over.
MAGA Melts Down Because Mullin Admits America Needs Farm Labor
Department of Homeland Security Secretary Markwayne Mullin has attracted ire from Trump’s base of supporters because he more or less conceded that the American farming industry needs migrant workers in order to survive. It’s a fact that played a political role in Trump’s decision early in his second term to flood blue cities with his Immigration and Customs Enforcement agents to carry out his mass deportation clampdown in urban areas — largely avoiding, at least initially, rural parts of the country where immigrant labor is often what keeps farms running.
During a bipartisan National Governors Association meeting in Oklahoma on Saturday, Mullin spoke about changes that need to be made to seasonal work visas to accommodate the year-round farm work demands of the agriculture industry.
“If we’re looking to grow our economy, then we need to look at making more permanent solutions on this,” Mullin said, reportedly adding that the “narrative” that immigrants steal Americans’ jobs is “not true for all industries.”
“It is America First. We want to take care of Americans first. It’s our economy. It’s our homeland. But there’s a way to utilize labor where we’re not having the participation rate where we need to. And we can plug those holes,” he said.
These remarks triggered extraordinary offense among MAGA figures. Fox News personality Tomi Lahren raged that Mullin is out to “appease liberal media.” Laura Loomer called on Trump to fire Mullin immediately. Podcasters Steve Bannon and Jack Posobiec both told Politico that MAGA wants Trump to replace Mullin with someone who, as Posobiec put it, “puts deportations first.”
Crowdsourcing His War
Per new reporting from CNN today:
“We are looking for new creative and unconventional ways to pressure and punish Iran,” an officer in US Central Command’s intelligence branch wrote in a message sent Wednesday to a broad group of military analysts, according to a source familiar with the message. A second source also said that a senior US military officer sent the message last week soliciting new ideas for how to deal with Iran.
Last week, a coalition of officials from 25 Democratic-led states and Washington D.C. filed a federal lawsuit against the Department of Homeland Security and the Federal Emergency Management Agency, arguing that the administration is coercing states into complying with new unlawful election changes by withholding billions of dollars in disaster relief funding and homeland security grants if the states do not bend to President Trump’s demands around election administration.
Specifically, the lawsuit argues that the Trump administration is coercing the states into adopting a number of new election procedures that it is trying to unconstitutionally force on state election officials. That apparently includes demands to transition to a paper ballot system and a requirement for states to run their voter rolls through an unrelated and unsecure database, the Federal Systematic Alien Verification for Entitlements (SAVE) system, to check voter rolls, among other things.
“Last year, DHS and FEMA embarked on an unprecedented campaign to leverage the billions of dollars in federal funding that they administer to coerce States into adopting the Administration’s preferred policies,” the lawsuit states.
The SAVE system, as TPM has reported, has been co-opted by the Trump administration and used as a way to purge alleged non-citizens from the voter rolls. The issue, however, is that there is evidence to suggest that the system has actually been removing eligible voters from the rolls, the states outline in their complaint.
It’s worth noting too that the use of the SAVE system to purge voters from the rolls was blocked by a federal judge just last month.
“Congress never gave DHS or FEMA authority to rewrite state election law, require cooperation with federal immigration agents, or terminate federal funding streams at any time and for any reason,” the lawsuit says.
“The Constitution grants the States the power to administer and set the rules governing federal elections, and pursuant to that grant of authority the States have adopted a range of systems for ensuring that votes are counted fairly and accurately. Defendants, however, seek to upend those laws and policies and—using hundreds of millions of dollars in federal funds as a cudgel—impose the current Administration’s preferred policies in their place,” the plaintiffs argue.
We’ll keep you updated as this challenge progresses. As always, there’s a lot more to unpack into this week, so let’s dive in.
Making Sense of the 150,000 Rejected California Mail Ballots
Close to 150,000 mail ballots were rejected in California’s primary last month — the highest number of rejected ballots in recent years. According to data from the California Secretary of State’s office, a total of 148,241 mail-in ballots were rejected, which is 1.7 percent of all the mail-in-ballots cast.
The majority of the rejected ballots — 93,497 to be more precise — were scrapped due to reportedly not being received on time. In California, all mail-in ballots need to be postmarked on or before Election Day, and they need to be received up to seven days after Election Day in order to be counted. Another 52,000 ballots were rejected due to signature verification issues, meaning either there was no signature on the ballot or there was an issue with non-matching signatures.
“I believe we saw an increase in the number of ballots rejected for being too late to count due primarily to voters holding on to their ballots longer than they might otherwise because of the volatile nature of the race for Governor and many groups encouraging voters to wait,” Kim Alexander, president of the nonpartisan California Voter Foundation said in an email to TPM.
And while this is a larger number of rejected ballots than usual, “it’s a comparatively small percentage,” Justin Levitt, professor of law at Loyola Marymount University told me.
“People keep forgetting, California is huge,” he said.
And Levitt said the incident actually provides evidence that election integrity is alive and well in California — despite what the Trump administration and election deniers might want you to believe.
“It, to me, is part of the evidence that California takes the integrity of its election incredibly seriously,” he said. “California puts a thumb on the scale for bending over backward in its legal rules to help ballots get counted. But if you’re outside of those legal rules, it’s not going to count the ballots.”
DOJ Uses New Jersey Noncitizen Voter Episode to Bolster Its Demand for Unredacted Voter Data
Democratic New Jersey Gov. Mikie Sherrill is pushing back on the DOJ’s demand to hand over the names of close to 6,600 noncitizens who were reportedly accidentally added to the state’s voter rolls due to a software error in the state’s automatic voter registration program in 2023 and 2024.
Last week, Sherrill announced the error which originated at the state’s Motor Vehicle Commission. As a result of the glitch, 400 noncitizens voted in at least one election since 2023. And although Sherrill has said that these noncitizens were removed from the voter rolls and that these ineligible votes did not impact the results of the elections in which they participated, it’s been good news for the Trump administration’s years-long quest to find evidence of any kind to support the myth that non citizens are voting in our elections.
In response to this revelation, Assistant Attorney General for the Civil Rights Division Harmeet Dhillon, sent a letter to Sherrill last week demanding that she hand over data (including names and addresses) on all these noncitizens. Sherrill, however, is refusing to comply with this demand.
“We are not in the practice of turning over this kind of personally identifying data over to the federal government because we have seen them weaponize it, I’ve seen it personally,” she said last week. “They are working to weaponize personal data, and they don’t have a reputation for keeping it private either.”
Of course, this whole unfortunate episode is now being used by the Trump administration as a way to help bolster its failing campaign to seize sensitive voter data from the states. The DOJ has, for months now, been demanding unredacted voter files from at least 44 states and Washington, D.C. Few states have complied, and the DOJ has sued in response — and it has lost every single case that has gone to court.
On the same day that it sent the letter to Sherril, the DOJ also filed a notice of additional basis in court to help its New Jersey voter roll case, arguing that the incident is evidence that the DOJ truly does need the state’s unredacted voter rolls.
“The Civil Rights Division of the U.S. Department of Justice sent Defendant the Additional Basis Letter because the Civil Rights Division learned of Governor Mikie Sherrill’s announcement on X on July 21, 2026, that ‘roughly 6,600 people who indicated that they were not U.S. citizens between June 2023 and June 2024’ were in fact ‘registered … anyway’ by New Jersey election processes—and roughly 400 of those people voted,” the notice reads.
Across the country, federal judges are calling out Department of Justice lawyers, questioning in unprecedented ways whether they can be trusted to tell the truth or uphold centuries-old legal norms.
From Washington, D.C., to Rhode Island to Oregon, federal judges nominated by presidents from both parties, including Donald Trump, have zeroed in on what’s called “the presumption of regularity.” It essentially means that judges must presume that the government — whether it be federal prosecutors, an IRS auditor or an FBI agent — did their jobs according to the rules and in good faith.
Until Trump’s second term, which has seen an exodus of veteran DOJ lawyers and a transformative shift in priorities from issues like enforcing civil rights to instead defending a mass deportation agenda, this foundational tenet had rarely been discussed in federal courtrooms, former judges, lawyers and scholars say. But as Trump’s DOJ exhibits behavior that judges have called “unlawful,” “unethical,” “unseemly” or otherwise dishonest, adherence to that bedrock standard is now being questioned.
ProPublica reviewed hundreds of cases since Trump retook the White House in which judges criticized the actions of DOJ lawyers and found more than 40 in which they explicitly referenced the presumption of regularity. In many cases, judges have expressed frustration that they can no longer take the government at its word.
“Judges simply don’t believe the representations that are being made by United States attorneys, assistant United States attorneys and the like,” said John E. Jones, a former federal judge for the District of Pennsylvania, appointed by President George W. Bush.
“I don’t think in the annals of the Department of Justice, in the history of jurisprudence in the United States, we’ve ever seen anything close to this.”
In Rhode Island in May, Trump-appointed federal Judge Mary McElroy rebuked federal prosecutors’ conduct — saying they withheld information and misrepresented facts — as she quashed their requests for a subpoena in their investigation into a hospital’s care of transgender children. The judge alleged the DOJ had inappropriately claimed its investigation was operating out of Texas to secure subpoenas targeting sensitive medical records of patients in another state and that it falsely claimed the Rhode Island hospital hadn’t communicated with the department.
“The discrepancy between the honorable conduct expected of federal prosecutors and DOJ’s tactics in this case is unsettling,” McElroy wrote. “The Court cannot help but share the sentiment that ‘[t]he presumption of regularity that has previously been extended to [DOJ] that it could be taken at its word — with little doubt about its intentions and stated purposes — no longer holds.’”
Judges have emitted a chorus of condemnations against the legal basis for some of Trump’s political agenda, including the mass firings of federal workers, an immigration dragnet that has imprisoned hundreds of U.S. citizens and retribution campaigns against the president’s political enemies.
In doing so, federal judges are imbuing forceful language into their orders in a way that scholars say signals to the Trump administration that the third branch of government is losing trust in the Justice Department.
“I don’t think in the annals of the Department of Justice, in the history of jurisprudence in the United States, we’ve ever seen anything close to this.”
Former federal Judge John E. Jones, a George W. Bush appointee
Federal judges rarely grant interviews, and none of the judges who criticized the Justice Departmentin their orders granted interviews to ProPublica.
In a statement, a spokesperson for the DOJ said its attorneys are “dedicated public servants who represent the United States with integrity, in accordance with their ethical obligations and the law.”
“The Department stands firmly behind the professionalism and good faith of its attorneys,” said spokesperson Kiersten Pels. The White House did not respond to a request for comment.
Federal judges have found that the government filed statements generated by artificial intelligence that referenced nonexistent case law, wrote briefs that ignored facts and filed declarations with inaccurate dates, the ProPublica review shows.
In one case, the government included documentation claiming a detainee had been convicted of marijuana possession in 2009. That detainee, the judge noted, citing what she called the government’s persistent “sloppiness,” would have been 4 years old.
“This Court will no longer blindly accept statements of fact from [the U.S. government] unless they are made under oath by an individual with personal knowledge,” Judge Christine O’Hearn, a President Joe Biden appointee, wrote in New Jersey while reviewing a writ of habeas corpus petition filed by a man who claimed he was unlawfully imprisoned by immigration officers. O’Hearn accused the government of defying her orders when, instead of releasing the man, Immigration and Customs Enforcement transferred him to a different facility in New York.
In Minnesota, the state’s top political leaders had publicly clashed with the administration following the violent ICE raids that led to the deaths of two U.S. citizens. Then the administration filed a flurry of subpoenas against them.
Last month, Judge Patrick J. Schiltz, who was appointed by George W. Bush and clerked for Supreme Court Justice Antonin Scalia, slammed the government’s actions and “spurious claims,” saying the presumption of regularity was being abused.
“Initiating a criminal investigation in order to harass political opponents or to coerce them into taking official action — particularly official action that the federal government cannot directly require those political opponents to take — is a blatantly unlawful and unethical use [of] the grand-jury process,” the judge wrote.
“Breakdown” of a Presumption
The presumption of regularity creates a high bar for those suing the government or defending themselves against it in criminal cases. They often must provide evidence that the government willfully violated a policy or otherwise deviated from its charge — that is, did something irregular — to overcome the standard.
It’s a shield the government wields often, with little notice, and one that is almost always successful. But overcoming that presumption has become increasingly common under Trump’s second term, according to court watchers.
About half of the cases ProPublica identified as questioning the presumption come from districts, including D.C., Maryland and Virginia, where by proximity and jurisdiction many of Trump’s actions are challenged and often heard by Democratic-nominated judges. The Southern District of New York, which has issued repeated rebukes of Trump administration actions, and the Northern District of California, another Democratic stronghold, are other hotbeds of judicial scrutiny.
Last September, D.C. District Magistrate Judge Zia M. Faruqui accused the administration of working around the federal grand jury process, getting an indictment from a state court after prosecutors had failed to get one in his court, which he called “unseemly,” if not “unlawful.” He fired off one of the earliest signs that the presumption itself could come into question.
“This only deepens the growing mistrust of the actions of prosecutors,” the judge wrote. “That is a sentiment that was once unthinkable, but the irregular is now the regular.” While the case was largely managed by assistant U.S. attorney Caelainn Carney, according to court transcripts, Faruqui was aiming his frustration at her bosses, including senior prosecutor Jonathan R. Hornok, and the leadership at DOJ. Neither attorney responded to requests for comment.
Pels, the DOJ spokesperson, told ProPublica that Faruqui “was wrong on the law” and noted that after the government appealed to the district’s chief judge, his order was overruled. “Judge Faruqui has a long-standing documented pattern of editorializing from the bench beyond the scope of the cases before him,” Pels added.
But in recent months, skepticism about the presumption has also come from judges appointed by Republicans, such as McElroy, or in GOP strongholds.
In Indiana, Trump-appointed federal Judge James Patrick Hanlon ordered the release of Salah Sarsour, president of the Islamic Society of Milwaukee and a lawful U.S. resident, from ICE custody in March. Sarsour’s lawyers argued the government had targeted him to suppress his First Amendment right to free speech. The DOJ invoked the presumption of regularity and argued his arrest was part of an anti-terrorism dragnet, which the judge threw out.
In the Southern District of Ohio, Judge Michael R. Barrett, appointed by George W. Bush, ordered ICE to release a detainee after concluding the presumption had been overcome because the government hadn’t presented a reasonable argument that the man was a flight risk.
News outlets, including CNN, have documented federal judges’ ire with Trump’s DOJ, and some of the cases under question have been well-publicized, such as the government’s illegal deportation of Maryland resident Kilmar Abrego Garcia to El Salvador. In that case, Judge Paula Xinis, a President Barack Obama appointee, criticized the government, saying, “You have taken the presumption of regularity, and you’ve destroyed it.”
Many of the rulings challenged one of Trump’s hallmark efforts: immigration enforcement and deportations.
“The presumption of regularity and integrity previously and routinely afforded to the Executive branch and the United States Attorney’s Office has been undeniably eroded in this jurisdiction and across the country,” O’Hearn wrote in February, noting that the federal government had repeatedly violated court orders in her district and others related to immigration operations.
In another immigration detention case, this one in Washington state, Biden-appointed Judge Lauren King said, “[t]he ‘presumption of regularity’ is dislodged here by the numerous factual errors in Respondents’ filings and by their conflicting representations.”
Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former federal judge from California, said what’s happening in the courts feels more like a “political conflict” than the normal ebb and flow of the justice system.
“It’s really one branch that is really sort of questioning the legitimacy of the other one,” Fogel said. “I think the judges are trying to stand up for the legitimacy of their branch.”
Just Security, an online law and policy journal, has been tracking cases in which federal judges have admonished Trump’s prosecutors, including those involving the presumption.
“We’re witnessing a breakdown in the ways in which any administration ordinarily carries out its responsibilities, through the Justice Department in particular,” said Ryan Goodman, Just Security’s co-editor-in-chief.
Erosion of Trust, Ethics Inquiries
The erosion of trust from the federal bench comes as Trump has profoundly shifted priorities at the DOJ to align with his political platform: ending civil rights and diversity programs, deporting immigrants and stripping away environmental protections.
Those who deal with DOJ lawyers have noticed the difference in court.
Mitch Bernard, chief counsel at the nonprofit Natural Resources Defense Council, has faced off on environmental issues with the DOJ many times. Although they may disagree, he said, he always expected his opponents to be “fair and above board.”
That dynamic is gone, he said.
“I would call it a transformation of the role of the Justice Department,” he said. “There are many different judges in different jurisdictions not only ruling against the government but calling the government out for dishonesty and dissembling, and that’s an extraordinary thing.”
The result, Bernard said, is that “the government will lose more cases as a result of the way the Justice Department is behaving.”
“There are many different judges in different jurisdictions not only ruling against the government but calling the government out for dishonesty and dissembling, and that’s an extraordinary thing.”
Mitch Bernard, chief counsel at the Natural Resources Defense Council
Meanwhile, groups such as his are benefitting from the government brain drain. “We hired 10 litigating attorneys last year,” he said. Of those, eight came from the DOJ.
Judges aren’t just losing faith in the DOJ. Some are pushing to sanction Justice Department lawyers.
This month, Miami federal Judge Kathleen M. Williams ruled that Trump’s lawsuit against the IRS was an improper exercise in self-enrichment, citing the president’s lawyers for a series of misstatements in the case.
The Obama appointee referred the lawyer who brought the president’s case against the IRS, Alejandro Brito, to the Florida Bar for potential disciplinary proceedings. She also forwarded her ruling to disciplinary officials in New York, who had earlier received an ethics complaint about acting Attorney General Todd Blanche.
A DOJ spokesperson called the Blanche case “nothing more than a politically motivated bar complaint, filed by partisan activists who disagree with this Administration’s policies.” Brito did not respond to a request for comment.
In Rhode Island, McElroy referred DOJ lawyers to a review board for possible discipline for their handling of the hospital investigation.
“As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary,” McElroy wrote. “DOJ has proven unworthy of this trust at every point in this case.”
Acting Attorney General Todd Blanche’s confirmation is stalled.
A meeting that was scheduled to take place between Sen. John Cornyn (R-TX) and Blanche was cancelled abruptly Wednesday morning — just a day before the Senate Judiciary Committee was scheduled to vote to move Blanche’s nomination for Attorney General out of committee.
This story was originally published by ProPublica.
Across the country, federal judges are calling out Department of Justice lawyers, questioning in unprecedented ways whether they can be trusted to tell the truth or uphold centuries-old legal norms.
From Washington, D.C., to Rhode Island to Oregon, federal judges nominated by presidents from both parties, including Donald Trump, have zeroed in on what’s called “the presumption of regularity.” It essentially means that judges must presume that the government — whether it be federal prosecutors, an IRS auditor or an FBI agent — did their jobs according to the rules and in good faith.
Until Trump’s second term, which has seen an exodus of veteran DOJ lawyers and a transformative shift in priorities from issues like enforcing civil rights to instead defending a mass deportation agenda, this foundational tenet had rarely been discussed in federal courtrooms, former judges, lawyers and scholars say. But as Trump’s DOJ exhibits behavior that judges have called “unlawful,” “unethical,” “unseemly” or otherwise dishonest, adherence to that bedrock standard is now being questioned.
It appears as though New Jersey Gov. Mikie Sherrill (D) will not comply with the Justice Department’s demands for the identities of the 6,600 noncitizens who were, through no fault of their own, placed on the voter rolls in 2023 and 2024.
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