In another time, Sarah Fabian might have expected to operate in obscurity. But in June, as she rose to face a federal appeals court panel in San Francisco, Fabian found herself on what would turn out to be an immense stage.

A career lawyer in the Justice Department's Office of Immigration Litigation, Fabian appeared before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in a case concerning how the federal government is obligated to care for detained migrant children. In the livestreamed argument, Fabian suggested that the federal government may not be required to provide detained children with soap, toothbrushes and beds, drawing pointed questions—and even flashes of disbelief—from the panel.

A clip of the argument quickly went viral, turning Fabian into the improbable face of the Trump administration's treatment of migrant children amid a pitched debate over the president's anti-immigration policies.

On social media, some called for Fabian's firing. She even received death threats. In response, Fabian reportedly took to Facebook and said her argument had been taken out of context. Fabian stressed that she was neither a political appointee nor an "official of any administration," adding, "I think I share many people's anger and fear at times over the future of our country, and I want to work to make it better too."

YouTube video screenshot of Sarah Fabian, Department of Justice attorney arguing before the Ninth Circuit Court of Appeals.

In August, the Ninth Circuit panel ruled against DOJ, finding that the federal government had failed to provide "safe and sanitary" conditions, in violation of a 1997 settlement agreement establishing standards for the treatment of detained migrant children. But Fabian's fleeting moment under the microscope underscored the challenge of being a career Justice Department lawyer in the age of Trump. For the past two years, controversial Trump administration policies and the president's penchant for tweeting have created new challenges for many career lawyers at the Justice Department, testing the long-held principle of putting personal views aside to defend the U.S. government through Republican and Democratic administrations alike.

In Fabian's case, the Ninth Circuit argument tied her—fairly or not—to the Trump administration at a time of widespread uproar over the detention of adult and children migrants. In other cases, the abrupt abandonment of legal arguments has raised eyebrows and risked compromising the credibility of career Justice Department attorneys. And in another case, a tweet from President Donald Trump undercut the very lawyers who were in court defending his administration's ill-fated bid to include a citizenship question on the 2020 census.

"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."

Turnarounds and Turnover

A new administration routinely ushers in new priorities. Less frequent are reversals of legal positions that Justice Department lawyers have staked out in court.

Last year, the Justice Department's decision to stop defending the Affordable Care Act and instead contest its constitutionality prompted a group of career government lawyers to withdraw from a case in Texas federal court.

The sudden reversal drew criticism from conservative and liberal attorneys alike, with one libertarian law professor describing the move as "astounding."

The challenge to the Obama administration's signature health care law is now pending in the U.S. Court of Appeals for the Fifth Circuit.

And last year, at a U.S. Supreme Court oral argument in the voting rights case, Husted v. A. Philip Randolph Institute, Justice Sonia Sotomayor remarked to U.S. Solicitor General Noel Francisco that it "seems quite unusual that your office would change its position so dramatically."

The turnarounds in court have been accompanied by turnover in the Justice Department. Joel McElvain, a 20-year veteran of the Justice Department who was involved in the Obamacare case, resigned after the Trump administration switched the government's position in a Texas federal trial court. McElvain has since joined the law firm King & Spalding as a partner.

Massey & Gail partner Matthew Collette.

In early 2018, Douglas Letter stepped down as head of the appellate staff in the Justice Department's civil division, the team primarily responsible for defending the U.S. government's policies in federal appeals courts. Letter initially joined the Georgetown University Law Center Institute for Constitutional Advocacy and Protection and was later named general counsel of the U.S. House.

Between March and July, more than a half dozen career Justice Department lawyers left the civil division's appellate staff. One of the lawyers, Tara Morrissey, became deputy chief counsel of the U.S. Chamber of Commerce's litigation arm. Megan Barbero departed to take an associate House general counsel role under Letter. And Rachel Homer stepped down for a role at Protect Democracy, an organization that has sued the Trump administration.

Former Justice Department lawyers familiar with the moves said the reasons for the departures have varied. But they described the civil division's appellate staff as being strained by cases that carry political importance to the Trump administration.

"Everybody's kind of been slammed just with the volume of litigation that has been going on in the department. There's just a higher volume of politically oriented cases, or cases the political appointees are interested or involved in, which makes things more difficult," said Baron & Budd partner Catherine Dorsey, who joined the firm in June after a nearly 17-year career in the Justice Department's civil division.

Practical Problems

Trump tweeted just after 11 a.m. on July 3. "The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE!" he wrote. "We are absolutely moving forward, as we must, because of the importance of the answer to this question."

Trump's tweet came days after a divided Supreme Court rejected the administration's stated reason for wanting to include a citizenship question in the upcoming U.S. Census. Chief Justice John Roberts Jr. had called the government's arguments in support of the question "contrived."

Following that ruling, the Justice Department and Commerce Department publicly confirmed that the government would drop its plan to include a citizenship question. In a Maryland federal court, Justice Department attorney Joshua Gardner relayed that message to U.S. District Judge George Hazel of the District of Maryland.

But Trump's tweet suggested that the administration was not backing down after all.