The Volokh Conspiracy
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Here We Go Again: Federal Judges Should Review Prosecutions From The Trump DOJ "Through a Different Lens"
No "Presumption of Regularity" for Trump 2.0
A common thread during the first Trump Administration was that this presidency was not "normal" and courts should not "normalize" it. Advocates and scholars on the left argued that the Trump administration should not be entitled to the "presumption of regularity." Professor Dawn Johnson, for example, lectured the Seventh Circuit Judicial Conference that "Courts attend to reality and context, and they can and should adapt their screens of deference when circumstances so indicate." And so on. I wrote about these developments at some length.
Now, with Trump 2.0 about to start, we are already seeing similar pleas. In The New York Times, Nancy Gertner (a retired Clinton appointee) and Joel Cohen (a retired prosecutor) offer advice of how judges should review prosecutions by the Trump DOJ:
In previous administrations, federal trial judges have had generally well-founded confidence that the Justice Department and the post-Hoover F.B.I., under presidents from either party, have not been employed to attack political enemies. Most district judges — especially those who have served as federal prosecutors, as most have — believe that the prosecutors appearing before them act with integrity, that their offices are not being manipulated to undermine those who challenged the current administration or its leader.
A judge could assume that the warrant has gone through layers of approval within the Justice Department, even reaching the assistant attorney general in charge of the criminal division, an extremely high ranking official in the department. That judge could also be reasonably confident that very little, if anything, would be amiss after passing through the layers of the approval process, including senior department officials.
But with the astonishing comments from the president-elect and his appointments, it is reasonable to ask if judges can still assume that level of confidence in the review process. The previous assumption that prosecutions would be undertaken only against individuals suspected of committing crimes may be wrong.
Now, when judges are asked to review warrant applications, or any other ex parte submissions from the government, they should do so through a different lens, much more scrupulously than ever before.
Nothing new here. We've heard it all before.
