President Donald Trump’s wrecking ball approach to governing has been swiftly met with dozens of federal lawsuits, filed on behalf of those affected by the fallout. As a result, the Justice Department has been working overtime to defend Trump’s policy swings in venues across the country. In many cases, prosecutors are left appearing deeply uninformed about the rapid changes happening within the administration when appearing before the bench. A hearing in Maryland on Friday highlighted just how overwhelming the deluge of litigation has become for government lawyers.
A hearing in Maryland on Friday highlighted just how overwhelming the deluge of litigation has become for government lawyers
The suit in question alleges that the Department of Government Oversight has acted unconstitutionally in the attempted shutdown of the U.S. Agency for International Development. U.S. District Judge Theodore Chuang was deeply skeptical that billionaire Elon Musk isn’t the one running DOGE, as the government has asserted. During Friday’s hearing, he pressed the Justice Department’s attorneys on why they hadn’t provided more documentation to back up their claims. In response, Justice Department lawyer Joshua Gardner tried to explain the context for the lack of information he was able to provide the court.
“Since Jan. 20, we have received approximately 80 lawsuits and our staff at the Justice Department’s Federal Programs Branch has been cut in half,” Gardner told the judge. “We have about half the number of staff that we had in November, and we are working on these expedited schedules.” When Chuang asked whether that meant the Justice Department wasn’t taking the case seriously, Gardner responded: “It’s the opposite. I haven’t had a day off since Jan. 20. We’re working day and night.”
As part of the Justice Department’s Civil Division, the Federal Programs Branch has been described as “an elite team that acts as the government’s first line of defense in court.” The Justice Department’s website for the branch, which according to its metadata was last updated in 2023, says it “is headed by three directors, who oversee a staff of approximately 110 attorneys and 25 support personnel.” Those staffers are then spread out across 12 litigation areas, including health and education, employment discrimination, and national security, national defense and foreign policy.
If what Gardner said is accurate, that would mean that the branch now has a staff of roughly 55 attorneys, who are all working on at least one case and probably are juggling multiple cases among them. Moreover, the dozens of lawsuits that have been filed span the branch’s litigation areas. There’s no guarantee that the lawyers who were “cut,” as Gardner put it, were evenly distributed among those areas, leaving some even more understaffed than others.
The Justice Department is looking to fill those roles quickly, Bloomberg News reported last week, sending out emails urging lawyers to “take immediate transfers” to the Federal Programs Branch. The same roles have also been open to the public for a month now, making the reported Justice Department plea for staffers from the tax and civil rights divisions to swap over seem even more strained. Normally, these are highly competitive positions.
And I, for one, find the scramble to try to fill these roles deeply encouraging as a sign that the federal justice system, while deeply strained, is still holding out against Trump’s consolidation of power.
I, for one, find the scramble to try to fill these roles deeply encouraging as a sign that the federal justice system, while deeply strained, is still holding out against Trump’s consolidation of power
First, it shows that there’s a need for competent lawyers that Attorney General Pam Bondi hasn’t been able to backfill with MAGA devotees. She has made it clear in memos issued upon taking office that she views U.S. attorneys and other Justice Department lawyers as “the president’s lawyers,” rather than serving the country, and that any who refuse to provide “zealous” advocacy for his agenda could be fired. But while the upper echelons of Main Justice might be filled with Trump loyalists, including his former defense attorneys, they’re having a harder time finding attorneys at this crucial level willing to sign up to serve Trump’s agenda without question.
It also indicates that there’s little appetite among career lawyers to apply to billets that would normally be quickly filled. Gardner himself can be seen as something of a cautionary tale when it comes to attracting qualified lawyers who are willing to defend the seemingly indefensible. As a career Justice Department official, he served as counsel during the first Trump administration in a case challenging the Commerce Department’s attempt to include a citizenship question on the 2020 census. Gardner was on vacation in 2019 when the judge set up a conference call to ask about a tweet that Trump had sent out that morning that seemingly contradicted what the Justice Department had told the court the day before.
“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 in a response that felt deeply relatable even then. “I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted. But obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.” Whatever answer he got resulted in the administration’s switching out the entire team of lawyers arguing the case in a move The New York Times called “all but unprecedented in legal battles as consequential” as the citizenship question issue. Altogether, it’s not exactly fodder for a convincing recruitment video for the Federal Programs Branch.
To be honest, I’m glad that we’re in a place where the Justice Department feels the need to hire new lawyers for these roles. We’ve already seen a purge or sidelining of the government lawyers like those within the Justice Department’s Office of Legal Counsel, who were best positioned to question the legality of the Trump administration’s actions from the inside. But there’s still a notable effort from Trump’s inner circle to push back against external allegations of illegality and win over judges who, at least for now, are willing to keep the executive in check.
From where I’m sitting, the administration’s attempting to defend its policies in court means that it hasn’t decided to ignore the judicial branch’s authority and rulings altogether. As long as that remains the case, there is a chance that the worst of the damage Trump is wreaking could be halted or reversed before it’s too late.