U.S. Department of Justice. Photo: Diego M. Radzinschi/ALM

Updated 12:49 p.m.

On the day before the Fourth of July, U.S. Justice Department lawyer Joshua Gardner stepped away from a summer vacation to dial into a conference call with a federal judge in Maryland. On the line for Gardner, in a way, was his standing—his credibility—with U.S. District Judge George Hazel.

Hazel was puzzled by something he saw on social media—a tweet from President Donald Trump that said his administration wasn't backing down from its quest to put a citizenship question on the 2020 census. The tweet raised questions about whether the administration might defy a recent U.S. Supreme Court ruling—and, for Gardner's purposes, it appeared to contradict statements he'd made to Hazel just a day earlier about the government dropping its plans to add the question to the decennial survey.

The judge apologized for pulling Gardner away from his vacation and asked bluntly: “Is the government going to continue efforts to place a citizenship question on the 2020 census?” Gardner responded: “I am doing my absolute best to figure out what's going on.”

Gardner's remarks, captured in a court transcript and appearing widely on social media and in news coverage, highlighted the challenge of being a Justice Department lawyer in the age of Trump. The president's 45-word tweet from the hip undercut the very lawyers who were in court to carry out his administration's policies. Trump's statement, and the aftermath, provided a real-time, unfiltered glimpse into the uncertainty and anxiety that has pervaded Justice Department litigation over the past two years.

The Trump-era tumult also has been marked by the absence of career Justice Department lawyers on some of the most visible cases involving the federal government. And attorneys have faced widespread criticism—whether fair or not—over certain positions argued in court cases around the country.

Several career lawyers withdrew from cases or have left the Justice Department amid dramatic shifts in litigation stances, including the government's move last year to stop defending the Affordable Care Act. Several weeks ago, a career lawyer was widely scorned after a video clip of her oral argument in a federal appeals court immigration case went viral. The clip, cut from a full-length argument, spurred debate over whether and when it's fair to hold a government attorney accountable for advancing policy positions coming from the White House.

“It is a very difficult time to be a government lawyer right now, a career government lawyer. There's no question about that,” said Massey & Gail partner Matthew Collette, a 30-year veteran of the Justice Department who stepped down late last year as the deputy director of the civil division's appellate staff.

“The real problem seems to be the administration is acting without regard to maintaining the credibility of the institution and its career lawyers,” he added. “It feels almost like these poor career lawyers are getting just eaten up—chewed up and spit out in the process.”

A Justice Department spokesperson declined to comment Monday.

U.S. District Judge George Hazel, appearing in 2013 at his confirmation hearing. Credit: Senate Judiciary

On the phone that afternoon in July, Gardner, a 16-year veteran with the Justice Department, said he's “always endeavored to be as candid as possible with the court.” He told Hazel that his earlier statements about the status of the government's position in the census case were “absolutely my best understanding of the state of affairs.” Hazel said he did not “blame anybody on this call.”

“But that's where we are,” the judge said.

Days after that phone call, the Justice Department said it was pulling Gardner and the rest of the DOJ's census team off cases in Maryland, New York and California courts. The government didn't explain why, but court observers said the maneuvering might have been an effort to let a new team of attorneys make arguments that contradict earlier statements to federal judges.

Last week, the Trump administration said it was retreating from its effort to add a citizenship case to the 2020 census. With U.S. Attorney General William Barr at his side, Trump announced an executive order that facilitates data-sharing among federal agencies. The three census cases, however, are still pending.

When Career Lawyers Take a Stand

Changes in a presidential administrations routinely usher in new priorities and an accompanying shift in resources. The Obama-era DOJ focused heavily on voting rights enforcement and targeting police abuses. Trump's DOJ has prioritized immigration enforcement and religious freedom.

Former DOJ lawyers said shifts in litigation stances can be perilous, potentially compromising the credibility of government attorneys. Career government lawyers have long tried—”maybe imperfectly”—to maintain credibility across presidential administrations, one of the former Justice Department lawyers said.

“Seems quite unusual that your office would change its position so dramatically,” Justice Sonia Sotomayor told Noel Francisco, the Justice Department's solicitor general, at an oral argument last year in a voter-rights case.

In another Supreme Court case, no career deputy solicitor general signed the amicus brief the Justice Department filed in the Supreme Court arguing in support of a Colorado baker who refused to make a wedding cake for a gay couple. The absence of a career deputy, whose name routinely adorns amicus and merits filings, drew scrutiny and suggested conflict at the Solicitor General's Office over what the Justice Department should say in the case—if anything at all. The Justice Department has denied there was any tension concerning the government's role in the case.

Last year, the Trump administration's decision to stop defending the Obama-era Affordable Care Act spurred a group of career lawyers to withdraw from the case, and some to leave the Justice Department altogether.

The Justice Department's reversal—from defending the law to contesting its constitutionality—marked a rare but not unprecedented move. The Justice Department largely has a duty to defend the laws of Congress. The Obama-era Justice Department was criticized for its decision to stop supporting the federal Defense of Marriage Act.

Joel McElvain, a 20-year veteran of the Justice Department who was involved in the health care case, resigned after the Trump administration switched its position in a Texas federal trial court. The government's legal stance garnered criticism from liberal and conservative attorneys. One prominent libertarian law professor called the government's abandonment “astounding.” The case is now pending in the U.S. Court of Appeals for the Fifth Circuit. McElvain has since joined King & Spalding as a partner.

Collette left the Justice Department last year in the wake of departures by other high-profile career government lawyers, including Douglas Letter, who resigned as director of the civil division's appellate team for a position at Georgetown Law. Letter was later named House general counsel by Speaker Nancy Pelosi.

“These people have devoted themselves to careers of defending the government,” said Robert Loeb, an appellate partner at Orrick, Herrington & Sutcliffe in Washington, who previously served for more than 20 years at the Justice Department. “It is demoralizing when they get up in front of a court to speak for the United States only to be undercut by the president; if that happens, you're not going to attract talented people. And the institutional memory of folks like Doug [Letter] and Matt [Collette] is going to continue to leave DOJ.”

From Obscurity to a Viral Video

Under the Trump administration, career lawyers who've labored for years in relative anonymity have been thrust, in some cases, into another uncomfortable position: the headlines.

Sarah Fabian, a career Justice Department lawyer who handles immigration cases, drew widespread outrage after suggesting in livestreamed arguments before the U.S. Court of Appeals for the Ninth Circuit that the federal government may not be required to provide soap, toothbrushes or beds to detained migrant children as a condition of “sanitary” confinement.

Sarah Fabian. Oral argument via YouTube

The case goes back many years, predating the Trump administration, but Fabian's argument came at a time of considerable debate over Trump-era anti-immigration policies and regular images of children and adults detained after crossing the U.S.-Mexico border.

Confronted with the online excoriation, Fabian reportedly took to Facebook to write a message to friends stressing that she was neither a political appointee nor an “official of any administration,” and also that she has “anger and fear” about the country's future. Fabian said her argument had been taken out of context.

“Whether that's because people saw only certain clips of the argument, or because the nature of oral argument is that sometimes your positions don't come out in full, or because I never articulated some pieces of my argument well enough to make my position clear, I can't say,” she wrote. “Probably all of those. I do not believe that's the position I was representing, and I get that defending myself by parsing out a technical legal position won't change most people's minds.”

Fabian's argument kicked up debate on social media and in news stories about whether it was fair to malign her for taking a position defending Trump.

“Unpopular opinion: I feel bad for Sarah Fabian. I think she's a career DOJ lawyer who probably is trying her best to follow professional responsibility rules to zealously advocate for her client, but unfortunately her client is arguing an untenable position,” one lawyer said in a tweet.

Another lawyer said on Twitter: “Indeed, there's a whole section within DOJ of career lawyers dedicated to defending any inhumane practice ICE chooses to institute. That's literally the job description.” He added: “Sarah Fabian is a long-time career DOJ employee, for better or for worse.”

Disruptor in Chief

The Supreme Court's ruling in the census case last month might have been the end of the road for the Trump administration, which had insisted that asking about citizenship on the census was lawful. Chief Justice John Roberts Jr. had called the government's arguments in support of the question “contrived.”

After the ruling, DOJ and Commerce Department officials publicly confirmed the government would drop its plan and move on. And that's exactly what Gardner, the civil division lawyer, relayed to Hazel, a Maryland trial judge since 2014. Trump's tweet—where he called media reports of the abandonment “fake news”—caught the attention of Hazel. It caught the Justice Department off-guard.

“The tweet this morning was the first I had heard of the president's position on this issue, just like the plaintiffs and your honor,” Gardner said. “I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted.”

Days later, Gardner and several other career lawyers withdrew from the census cases and the DOJ moved to install a new team, led by a former Trump White House lawyer and Jones Day associate named David Morrell.

“Since these cases began, the lawyers representing the United States in these cases have given countless hours to defending the Commerce Department and have consistently demonstrated the highest professionalism, integrity, and skill inside and outside the courtroom,” a Justice Department spokesperson said. “The attorney general appreciates that service, thanks them for their work on these important matters, and is confident that the new team will carry on in the same exemplary fashion as the cases progress.”

Court watchers said the initial team might have faced questions from judges about any new legal arguments in the case, especially after the DOJ argued it needed a final ruling by June 30 to begin printing the census. Speaking at a Heritage Foundation event last week in Washington, before the Trump administration abandoned its plans to put the question on the census, Paul Weiss appellate partner Kannon Shanmugam said any move by the government to press forward would have posed a “litigation challenge” for the Justice Department.

Gardner hasn't spoken publicly about the telephonic hearing with the Maryland judge that would make his name a centerpiece in thousands of tweets and on cable news shows.

When Hazel said he needed the Justice Department to tell him in just two days what its plans were for the census case, Gardner asked for more time, given the “difficulty in assembling people from all over the place” around the Fourth of July.

“No,” Hazel said.

 

Read more:

In Claiming Census Victory, Trump Nods to Alito's Dissent

Meet the 3 Judges Who've Checked Trump's Census Citizenship Question

King & Spalding Nabs Ex-DOJ Official Who Quit After Obamacare Shift

Sotomayor Confronts DOJ's Francisco About Switched Position in Voter Case

Topsy-Turvy at the Trump-Era Main Justice

 

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Marcia Coyle contributed reporting from Washington.