Judges Say Ice, Doj Leaders Are Putting Rank-and-file Lawyers In ‘an Impossible Position’

Federal judges livid over missed deadlines and outright defiance of their orders in a sea of immigration cases are training their ire on the Justice Department’s political leadership, going out of their way to acknowledge that the rank-and-file lawyers arguing in front of them are sometimes powerless to change the administration’s behavior.

Judges in several states have recently taken pains to separate these attorneys from their bosses in Washington — and from Immigration and Customs Enforcement, which they see as increasingly responsible, and unremorseful, for the rampant violations amid President Donald Trump’s mass deportation push.

The dynamic has crystallized amid a deluge of emergency lawsuits filed by ICE detainees, which have overwhelmed court dockets and frustrated judges — who have overwhelmingly rejected ICE’s detention practices as illegal.

The flood has, in turn, put DOJ’s line attorneys in uncomfortable spots. They’re being thrust into courtrooms without specifics, often asked to defend ICE’s detentions without details and sometimes without being able to reach their ICE counterparts to get information. They’ve missed deadlines and been scolded by judges for offering boilerplate arguments. Some DOJ attorneys have resigned or been fired, further straining understaffed offices.

It’s all coming to a boil in courtrooms across the country.

“The judges of this District have been extraordinarily patient with the government attorneys, recognizing that they have been put in an impossible position,” U.S. District Judge Patrick Schiltz wrote in a recent opinion, instead blaming “the Administration sending 3000 ICE agents to Minnesota to detain people without making any provision for handling the hundreds of lawsuits that were sure to follow.”

The George W. Bush appointee’s frustration drew headlines as Minnesota’s federal courts grappled with Operation Metro Surge, the mass detention and deportation operation in the Twin Cities. His colleagues on the bench in Minnesota have voiced similar frustration. U.S. District Judge Susan Nelson scolded the Trump administration this week for providing “utterly meaningless” assurances that a man whose criminal charges were dropped would be released. Instead, the man was immediately detained by ICE — capping a saga in which the judge tried and failed for weeks to get straight answers about whether he remained in ICE custody.

Outside of Minnesota, judges are raising similar complaints. In West Virginia, U.S. District Judge Joseph Goodwin, a Clinton appointee, praised rank and file Justice Department attorneys.

“I note that counsel for the Government has been responsive and professional before this court,” he wrote in a recent opinion decrying the Trump administration’s conduct in immigration cases. “The problem lies in the attorneys’ clients, federal government actors, who have offered no evidence that they have seen or even care about the legal rulings of this district. The disregard for the law shames every hard working public servant who toils for the benefit of the country and its people.”

Representatives for the Justice Department and the Department of Homeland Security did not respond to requests for comment.

In New Jersey, after the Justice Department acknowledged dozens of violations of court orders, U.S. District Judge Michael Farbiarz probed whether the mistakes were “inadvertent” or something more malicious. One notch in DOJ’s favor, he said, was that the assistant U.S. attorney he tasked with investigating the matter, John Basiak Jr., “is known … to be a professional of high integrity.”

“The main problem is on ICE’s side of the line,” Farbiarz, a Biden appointee, continued. “In response to the Court’s order as to going-forward compliance measures, nothing came back from ICE. Nothing about how it might improve its internal processes. Or its training. Or its supervision. … No commitment to do anything at all. And no statement of ‘regret.’”

“In the face of scores of violations of recent judicial orders, this silence, the Court fears, is clarifying as to the overall approach of local ICE leaders to following the Court’s orders,” he added.

Outside the context of immigration enforcement, judges also see a distinction between rank-and-file DOJ lawyers and their superiors. On Monday, U.S. District Judge Matthew Brann rebuked the Trump administration’s view of the president’s power to appoint powerful prosecutors without Senate confirmation. The Pennsylvania-based Obama appointee, in ruling that the administration illegally appointed a “triumvirate” of leaders to oversee the U.S. attorney’s office in New Jersey, emphasized that his criticism was a targeted one.

“This comment does not apply to the ‘loyal employees in the U.S. Attorney’s office,’ who have clearly demonstrated that they care deeply about doing their important work,” he said, “and have shown an admirable commitment to that purpose.”