U.S. Attorney General Jeff Sessions U.S. Attorney General Jeff Sessions. Photo: Diego M. Radzinschi/ALM

As the U.S. Supreme Court considered whether to block a court-ordered deposition of Commerce Secretary Wilbur Ross in a suit over the 2020 census, Attorney General Jeff Sessions on Monday night inveighed against federal judges who have allowed what he called “invasive discovery” into executive branch operations.

Accusing an “increasing number of judges” of being akin to “roving inspectors general for the entire executive branch,” Sessions, speaking at a Heritage Foundation event in Washington, pointed to the Ross deposition dispute to argue that judges are going beyond their powers to resolve purely legal disputes.

U.S. District Judge Jesse Furman of the Southern District of New York, upheld on appeal, ordered Ross to sit for a deposition in litigation over the inclusion of a citizenship question on the coming census. The Justice Department has appealed the order to the Supreme Court, where the dispute is pending and could be acted on soon.

“The court believes this is proper because it wants to probe the secretary's motives. But the census question—which has appeared in one form or another on the Census for over a hundred years—is either legal or illegal,” Sessions said in his remarks. “The words on the page don't have a motive; they are either permitted or they are not. But the judge has decided to hold a trial over the inner workings of a Cabinet secretary's mind.”

Depositions of Cabinet officials must meet a high bar, but the U.S. Court of Appeals for the Second Circuit said that threshold had been met in the case involving discovery of Ross.

“The district court, which is intimately familiar with the voluminous record, applied controlling case law and made detailed factual findings supporting its conclusion that Secretary Ross likely possesses unique firsthand knowledge central to the plaintiffs' claims,” the court said on Oct. 9. “As the district court noted, deposition testimony by three of Secretary Ross's aides indicated that only the Secretary himself would be able to answer the plaintiffs' questions.”

Sessions on Monday called the deposition of a Cabinet official a “monumental disruption” that “should not be done lightly.” He vowed the Justice Department would prevail, drawing applause from the audience.

Sessions' remarks at Heritage, a conservative group sympathetic to the Trump administration's policies, were an extended rebuke of the federal judiciary and highlighted other gripes he has previously expressed.

He repeated his oft-spoken criticism of nationwide injunctions as an example of what he described as “judicial encroachment.” Since President Donald Trump was elected, Sessions said, 27 district courts have issued these injunctions. The Supreme Court declined the Justice Department's invitation, last term in the travel ban litigation, to curtail the power of federal trial judges to issue nationwide injunctions.

“Courts ignore these constitutional limits at their peril,” warned Sessions. He said any judges overstepping boundaries makes him or her open to criticism as any other political leader “and the same calls for their replacement.”

Sessions also applauded the Trump administration's appointment of 84 federal judges, including Justices Neil Gorsuch and Brett Kavanaugh. “These judicial appointees are the culmination of decades of the work done by those in this room, and Justices Gorsuch and Kavanaugh are the heirs to this legacy,” he said.

Sessions made no mention of the sexual assault allegations that roiled Kavanaugh's confirmation proceedings. Kavanaugh was confirmed this month 50-48, the narrowest margin of any modern Supreme Court nominee. He denied the sexual misconduct claims from his high school and college years, blaming Democrats for an “orchestrated” political hit.

 

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