On the surface, the case of Bryan Rafael Gomez seemed like thousands of others filed from coast to coast as the Trump administration has detained immigrants without a bond hearing.
But after Gomez successfully petitioned for his release, it became clear his case could hardly be more different.
First, on April 30, the Department of Homeland Security posted a press release online that blamed an “activist judge” for releasing “a violent criminal illegal alien who is wanted for murder in the Dominican Republic.”
After media coverage of that release ensued, the judge, Melissa DuBose of the District of Rhode Island, issued a stark order that same day. Noting that the government had never apprised her of the detainee’s “dangerousness and/or criminal history,” she directed the Justice Department to explain why it should not be held in contempt.
And that’s when things really took a turn.
In his May 1 response, the DOJ lawyer involved, Kevin Bolan, acknowledged that he knew, prior to DuBose’s release order, that Gomez had an outstanding 2023 arrest warrant, but he said unnamed Immigration and Customs Enforcement officials told him Bolan “was not permitted to disclose that information” to DuBose for an unspecified “legitimate law enforcement reason.”
Bolan added, “I sincerely apologize to Judge DuBose, personally, and to the entire Court for the consequences of this lack of disclosure.”
Less than two weeks have passed since Bolan’s admission and apology, but the fallout has been swift.
DuBose referred Bolan, the chief of the civil division of Rhode Island’s U.S. Attorney’s Office, for disciplinary proceedings for his “lack of candor.” The chief judge of the district has since appointed a law professor and former Scalia clerk to investigate the matter. DuBose also warned she could issue sanctions against ICE and/or DHS personnel.
Despite her pique at the government’s willful failure to furnish her with all relevant information, DuBose reversed her order releasing Gomez, only to learn that ICE cannot find him. Gomez’s lawyer has since asked to withdraw from representing him.
Meanwhile, DHS’ press release remains online, and the department’s general counsel even published a column accusing DuBose of “reckless disregard for the law,” insisting she had no legal authority to release an immigrant detainee and alleging her actions since discovering the department’s misrepresentations amount to “judicial misconduct.”
As recently as last year, that any government lawyer, much less an experienced litigator like Bolan, would knowingly conceal information from a federal court would have been unthinkable. It would have been equally inconceivable that a federal agency would continue to blame a federal judge for a decision attributable, even if partially, to the agency’s withholding of information.
But in the Trump administration, episodes like the Gomez case are no longer aberrations, even in the tiny District of Rhode Island, which has only three judges with lifetime tenure.
On May 13, a second of those judges, Mary McElroy, released a scathing opinion in a case involving what the DOJ has framed as “a nationwide healthcare fraud investigation” into gender-affirming care for children. As a part of that investigation, the department issued to Rhode Island Hospital what McElroy described as a “broad and sweeping” subpoena seeking several years of “sensitive medical information of every minor patient that had received gender affirming care at that hospital.”
McElroy invalidated that subpoena for several reasons, including the minors’ right to privacy and her finding that the subpoenas were issued to harass and intimidate those who provide gender-affirming medical care for minors.
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But prior to reaching that legal conclusion, McElroy recounted the history of the subpoena and the ensuing litigation, concluding that the DOJ has “proven unworthy of [the Court’s] trust at every point in this case.”
The department, according to McElroy, not only “misrepresented and withheld” information from her, but then it did the same in a Texas federal court where it sought to enforce the subpoena. Specifically, the DOJ led the Texas court to believe the hospital was unresponsive and uncooperative, when in fact it was the DOJ that had failed to communicate with the hospital for months. Moreover, to convince the Texas court it had jurisdiction over a subpoena to a Rhode Island hospital, the DOJ said the investigation was being led by its Northern Texas office, even though all but one of the lawyers involved works in the department’s Washington, D.C., headquarters.
McElroy also found the DOJ purposefully misled the hospital itself in what McElroy described as a “subterfuge to prevent [the hospital] from realizing that the DOJ had decided to go to Texas for an order compelling production of the very records that they had been discussing for months.”
According to McElroy, the DOJ’s misrepresentations and omissions had a very real cost. The Texas court not only granted the enforcement order without notifying the hospital, but also both it and the Fifth Circuit refused the hospital’s request for a stay, prompting it to file an emergency motion in Rhode Island.
Ultimately, McElroy officially quashed the subpoenas and blocked the DOJ from “receiving, using, retaining, or disseminating any patient-identifying information or protected health information” produced by the hospital. But she noted that she cannot invalidate the Texas court’s enforcement order, which the department procured through the sort of “unsettling” tactics that have repercussions far beyond this case.
Since the early days of our nation, federal courts have extended something called the “presumption of regularity” to government officials and employees. Broadly speaking, the presumption is the idea, as a law review article tracing its history explains, that people working for the executive branch “are lawfully and consistently discharging their duties.”
In modern times, that concept has evolved to include an assumption that Department of Justice prosecutors are accurately representing facts — and not concealing pertinent information.
But McElroy, in concluding her opinion, quoted an earlier Oregon district court ruling that determined the presumption that the DOJ “could be taken at its word—with little doubt about its intentions and stated purposes—no longer holds.”
The DOJ has already indicated it will appeal her decision. But whether it ultimately obtains the records it seeks, the department’s conduct raises broader, fundamental questions.
If DOJ lawyers have been caught misrepresenting or omitting critical facts just within the past two weeks in Rhode Island, how many DOJ lawyers have done the same, with or without encouragement from other executive agencies, in the other 93 judicial districts? And how can our system of justice survive if faith in those dispensing it deservedly falters?
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.