Trump’s Getting Thumped in Court

Bad faith arguments, blatant misrepresentations, illegal appointments and politicized prosecutions are turning judges against Trump’s DOJ.

LEFT: U.S. President Donald Trump. Photo by Andrew Caballero-Reynolds/AFP via Getty Images. RIGHT: James Boasberg, chief judge of the US District Court for the District of Columbia. Photo by Drew Angerer/AFP via Getty Images

Our courts are slow. They are methodical. And they simply weren’t designed to keep pace with a White House bent on destruction.

Until recently, the judiciary seemed no match for this “move fast and break things” White House. The regime was out of the gate at breakneck speed, dismantling agencies, firing workers, seizing systems, freezing funds, flooding the zone with illegal decrees, and even thumbing its nose directly at some court orders.

Our legal system reeled under the assault. Yet with each new attack, each new contemptuous act, the judicial branch’s ire grew. District court judges became deeply skeptical of bad-faith partisan zealots within the DOJ. Courts learned to adjust and counter the actions of the Justice Department, crafting orders with specific compliance markers to keep the government in line.

Over time, and with patience, our judges built their case records, closed off avenues of escape, and began meting out orders faster than new and inexperienced DOJ leaders could react. Unforced errors by the government mounted. And even the captive Supreme Court majority has done little but play kick the can—and lately has even drawn some notable lines.

The result is a stunning set of recent setbacks for the Trump regime:

• disqualifications of several U.S. attorneys personally selected by Trump;

• the unprecedented loss of the “presumption of regularity” in prosecutions;

• cases thrown out over official misconduct;

• dozens of publicly admitted misrepresentations; and

• discovery ordered on possible vindictive and selective prosecution.

These broad buckets are best understood through specific examples, so let’s look at some within each to show how things are looking pretty rotten for the Trump White House.

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Disqualifications of U.S. Attorneys

Few had this on their 2025 bingo card. Trump’s campaign to nail his political opponents requires loyalists willing to break all the DOJ rules. To achieve this, Trump has appointed inexperienced lackeys to head up U.S. Attorney offices around the country.

There’s just one problem: These appointments require Senate approval, and these days that’s far from assured. A handful of GOP senators have recently revolted against Trump’s tariffs on Brazil and Canada and have shot down his more appalling political appointees, including Paul Ingrassia and E.J. Antoni. There is no guarantee that the Senate would greenlight some of Trump’s worst picks for U.S. Attorney.

Judges have taken note after defendants moved to disqualify top prosecutors as illegally appointed. A judge in New Jersey, for example, recently found Alina Habba’s appointment unlawful and ruled that her actions since July may be void.

“The Executive branch has perpetuated Alina Habba’s appointment to act as the United States Attorney for the District of New Jersey through a novel series of legal and personnel moves,” U.S. District Judge Matthew W. Brann wrote in a 77-page ruling. “Faced with the question of whether Ms. Habba is lawfully performing the functions and duties of the office of the United States Attorney for the District of New Jersey, I conclude that she is not.” Habba, a former Trump lawyer, is “not currently qualified to exercise the functions and duties of the office in an acting capacity,” so “she must be disqualified from participating in any ongoing cases,” he wrote.

Those cases include one against Rep. LaMonica McIver for allegedly assaulting a federal agent at an ICE facility—a bogus claim to begin with, based on the video evidence.

Another U.S. Attorney, Sigal Chattah in Nevada, suffered a similar fate. In late September, Judge David G. Campbell disqualified Chattah from supervising any part of the case before him. Judge Campbell noted that Chattah’s appointment as interim U.S. Attorney was effective April 1, 2025, but could only last 120 days, after which “judges of the Nevada District Court could appoint an interim U.S. Attorney to serve until the vacancy is filled by the President and Senate.” Judge Campbell noted, “That procedure was not followed.”

More than 100 judges have signed a letter saying Chattah was unfit for office and should not serve as U.S. Attorney for Nevada. Gregg Nunziata, executive director of the Society for the Rule of Law Institute that spearheaded the letter, wrote, “This administration has a disturbing pattern of entrusting Justice Department leadership positions to individuals ill-suited to such roles, often evading the Senate confirmation process to do so.”

“The role of a United States Attorney demands honesty, integrity, impartiality, judgment, and deep respect for the rule of law,” said J. Michael Luttig, a retired and respected conservative judge from the U.S. Court of Appeals for the Fourth Circuit. “Based on Ms. Chattah’s public statements and conduct, we do not believe she even arguably meets this standard.”

Chattah is indeed a piece of work. During her campaign to become Nevada’s state AG, Chattah had sent a text message to a former friend saying that her Black Democratic opponent deserved to be hanged. And while serving as interim U.S. Attorney, Chattah, who is Israeli and an outspoken defender of its policies, announced her office would not be prosecuting Israeli child predator suspect Tom Alexandrovich, even though it was pursuing charges against seven other individuals charged in the same federal child sex sting.

A third U.S. attorney for the Central District of California, Bill Essayli, was recently disqualified after a judge found his appointment by Pam Bondi to be unlawful. Now, in perhaps the most high-profile case of all, defendants James Comey and New York state Attorney General Letitia James have moved to disqualify interim U.S. Attorney Lindsey Halligan as unlawfully appointed, based on the same reasoning other courts have used.

That has particular salience in the Comey case because, if the court agrees, then any further action against Comey on charges of false statements to Congress would be barred by the statute of limitations.

No benefit of the doubt

The “presumption of regularity” is a legal concept best understood as a deference to the DOJ. Courts normally give credit to the executive branch, including over its alleged facts describing what happened and why. Courts aren’t normally in the business of second-guessing the executive branch’s decision-making and outcomes.

As Joyce Vance observed in a fascinating interview with Slate’s Dahlia Lithwick, under the presumption of regularity, “We assume, in the absence of evidence to the contrary, that the Justice Department acted in good faith, and that public officials fulfill their official duties.”

She noted that, while she was a federal prosecutor,

half a dozen times a year a defendant who we, in my office, had indicted would come back and say, “the prosecutors were out to get me, and I want to depose the agents and get the grand jury transcripts.”

But the presumption of regularity would normally answer such attempts. Explains Vance,

And so you would go in front of a federal judge and apply the presumption of regularity and say, “This is speculative, this is fictional, there’s no evidence that we behaved in any way wrongly. This prosecutor brought these witnesses in front of the grand jury and the grand jury found probable cause and this defendant will have an opportunity to defend himself and have due process at trial.”

The presumption cut through this quickly because

The judges would routinely apply the presumption of regularity. You knew when you went into the courtroom that judges invested trust in you and it was your job to live up to that trust.

Under Pam Bondi’s leadership, however, the Department of Justice has squandered this presumption. Courts around the country are finding that the presumption of regularity has been lost due to underhanded and bad-faith actions by the Justice Department. Many courts now look skeptically upon decision-making and processes that should be routine and normal.

Over and over, the DOJ has caused its own actions to look suspicious. For example, the Department dropped corruption charges against New York City Mayor Eric Adams not because the evidence was insufficient but because of a political decision to reward his cooperation with the Trump regime. That act led to six resignations within the DOJ.

The decisions to prosecute James Comey and Letitia James are another example. The factual bases for these cases are weak, indicating that the DOJ was actively fishing for reasons to charge them criminally with wrongdoing as payback for their actions against Trump. The cases proceeded nevertheless over the strong objections of the U.S. Attorney who oversaw those prosecutions, resulting in his ouster as well.

Recently, in the Kilmar Abrego García case, Judge Waverly Crenshaw noted that the prosecutor, Robert McGuire, failed to answer some basic questions in his supplemental affidavit, including “how did Abrego’s case arrive on his desk” and “why did it show up on April 27, 2025, when the case had been previously closed by DHS.” The judge, his ruling laced with suspicion, observed, “Cases do not magically appear on the desks of prosecutors”—suggesting that improper coordination took place.

Having lost the presumption of regularity through its own deceptive or politically motivated practices, DOJ attorneys now enter court under a cloud of suspicion, their motives tainted with possible improper considerations. The trust that took generations to build has been lost overnight, and the consequences to the ability of the DOJ to successfully prosecute cases cannot be overstated.

Cover-ups and whitewashings

When courts feel compelled to look under the hood at what underlies the government’s allegations, they are not liking what they see. For example, just this week, a D.C. magistrate threw out charges against an unarmed Black man arising out of a traffic stop. A federal agent, who was reportedly working alongside D.C. police officers, had fired his weapon at the man while he was still in his vehicle. There were bullet holes in the passenger seat.

A spokesperson for DHS alleged that the motorist had been attempting to flee and that the federal agent had fired into the car “for fear of his life” after the motorist drove at them “in a deliberate attempt to run them down.” But none of the officers was standing in front of the car; there was another vehicle in front of the motorist; and the bullets entered from the side of his car, not the front. All of this suggested the official version of events was untrustworthy or fabricated.

Importantly, despite the dangerous discharge of a weapon into the vehicle, the arrest report failed to even mention gunfire. According to the Washington Post, a D.C. police officer testified that he was affirmatively instructed by a superior not to document the shooting in a court record.

This raises a very serious question: Was this cover-up because the agent involved was with Homeland Security?

The D.C. police had been placed under the control of the federal government by order of Trump, and that coordination has continued despite the expiration of the initial time period. The police in this case were patrolling in collaboration with officers from five federal agencies, including the FBI and Customs and Border Protection, as part of the “Make DC Safe Again” initiative.

Magistrate Judge Heide L. Herrmann expressed concern that the shooting was not disclosed in court records. “If they are charging fleeing, and they did not disclose initially that there were shots fired into the fleeing vehicle, I find that very concerning,” Herrmann said before dismissing the case for lack of evidence.

This week also saw attempts by the Justice Department to whitewash the record around January 6 and punish officials who told the truth. Two prosecutors were immediately put on leave after they described January 6 in a charging document as an attack perpetrated by “thousands of people comprising a mob of rioters.”

According to Politico, “The accurate description of the attack came in a sentencing recommendation for Taylor Taranto, who was among those pardoned by President Donald Trump for his role in the riot. But Taranto had also been convicted for unrelated threats and firearms crimes for which he is slated to be sentenced Friday.”

Assistant U.S. Attorneys Carlos Valdivia and Samuel White had urged Taranto to be sentenced to more than two years in prison. Taranto had driven through the neighborhood of former President Barack Obama with a van full of firearms and ammunition. That visit occurred after Donald Trump doxxed Obama on Truth Social by posting his address—something Taranto saw before making the trip.

Now, a new charging document has emerged, scrubbed clean of any reference to the attack upon the Capitol and of any mention of Trump’s role in posting Obama’s address.

Judges read the news. They see what’s happening with this regime and this Justice Department and how it regularly seeks to omit, alter or hide the truth. And they are aware of the Justice Department’s now long record of overt misrepresentations.

Government misrepresentations and the credibility gap

Professor Ryan Goodman led a team at Just Security that compiled over three dozen recent instances where the courts identified “serious defects in the government’s explanations and representations.” These include pretextual rationales, including the obscuring of retaliatory motives, false sworn statements, contradictions with the record, refusals or inability to answer basic questions and litigation-driven “contrivances.”

Even one such instance, under normal circumstances, would prompt serious inquiry. Dozens of them form a cloud of doubt and suspicion, “prompting judges to discount government submissions, compel expedited discovery, and withhold the presumption” of regularity, the authors of the report write.

These misrepresentations can carry serious repercussions, resulting in some true headshaking moments—even in some of the highest profile and most consequential cases in the country.

For example, in its arguments before a panel of the Ninth Circuit, to which the government had appealed Judge Karin Immergut’s temporary restraining order barring Oregon National Guard troops from deploying to Portland under Trump’s orders, the government misrepresented the numbers of agents involved and the impact of the protest on Department operations.

As Democracy Docket reported,

In a letter to the Ninth Circuit Court of Appeals, Andrew Bernie, a DOJ attorney, said the Trump administration made several “errors” in describing how many special law enforcement officers it sent to Portland in response to protests outside of an Immigration and Customs Enforcement facility in the city.

Officials had claimed that 115 Federal Protective Service (FPS) officers had been ordered there between June and September, representing around a “quarter” of the whole FPS, which is charged with protecting federal facilities.

DOJ repeatedly argued that this was a major reallocation, supporting its assertion that Trump was “unable” to enforce federal law in Portland with “regular forces” and was therefore justified in deploying around 200 Oregon National Guard troops in September.

The number of FPS officials allegedly sent to Portland was also a key fact that a Ninth Circuit panel relied on in determining that Trump had the authority to federalize and deploy Guard troops to the city. (That ruling is now on hold pending en banc review by the Ninth Circuit.)

But evidence Oregon obtained through discovery showed that FPS officers in Portland never numbered more than 31 at any time. That’s a lot fewer than 115.

Bernie was forced to acknowledge that the DOJ had incorrectly asserted that “it is undisputed that nearly a quarter of the agency’s entire FPS capacity had to be redirected over a relatively short period to a single location in one medium-sized American city due to the unrest there.” Bernie admitted, “This statement was incorrect.”

Bernie explained this referred to the percentage of FPS “inspectors” who were sent to Portland. Rather than a quarter, the amount was only around 13% of all FPS inspectors, Bernie wrote. “We deeply regret these errors.”

But do they? The government still argues, in a new declaration submitted on the eve of trial, that the number was not a lie because a smaller number of the same officers might have responded multiple times over the course of those months:

“It appears that others understood the 115 to include only individual officers, not number of deployments. When factoring out the officers who deployed to Portland more than once, the number of individual officers who deployed to Portland as of September 30, 2025 is approximately 86 not 115.”

The courts are now faced with the prospect that they cannot simply believe what the government says and it will stretch credulity even further to explain the first lie.

But worse still, courts now must grapple with the notion that they cannot trust the government’s motives at all.

The beginning of the end for politicized prosecutions?

The prosecutions of Trump’s political enemies, including James Comey and Letitia James, could mark the nadir of what the Department of Justice has become under Trump’s cronies.

There is little doubt about what is going on because Trump put it out there for everyone to see. In a post on Truth Social that, per the Wall Street Journal, was reportedly intended as a DM to his Attorney General (and let’s not even go into what’s wrong with private communications between the president and the AG), Trump made his intentions clear. As NBC News reported,

The lengthy post on Sept. 20 addressed Bondi as “Pam” and expressed frustration that “nothing is being done” to his foes.

“What about Comey, Adam ‘Shifty’ Schiff, Leticia [sic]???” he wrote, referring to former FBI Director James Comey, Sen. Adam Schiff, D-Calif., and New York Attorney General Letitia James.

“They’re all guilty as hell, but nothing is going to be done,” he claimed, adding, “We can’t delay any longer, it’s killing our reputation and credibility.”

“They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!” his post concluded.

Legal observers noted at the time that this was going to be Exhibit One in the defendants’ motions to dismiss for vindictive and selective prosecution. Indeed, it’s hard to imagine a more direct statement than what Trump inadvertently served up with his mistaken post.

As with their disqualifications of inexperienced Trump-appointed U.S. attorneys, the federal judiciary now has an opportunity to slam the door shut again, this time on the DOJ’s politicized prosecutions. While the defendants no doubt would love to clear their names in a trial, for the good of the country and the rule of law it is imperative that these cases be halted immediately as improperly motivated.

A group of bipartisan former federal judges have weighed in on the Comey case by filing an amicus brief recommending dismissal. They write that judges

need to be able to rely upon prosecutors to exercise their expansive discretion based solely upon the consideration of justice, not private biases or, worse, the political motivations of the President. If the neutrality of prosecutors is undermined, or even appears to be undermined, the public will be unable to rely upon the courts to do justice, rather than to be used as a tool to carry out the political or personal whims of those who hold office.

They have a stark warning should the case against Comey be allowed to proceed, noting

individuals who are on the wrong side of the politics of the moment may be at grave risk of losing their liberty because of the caprice of a powerful political player.

They add,

Political prosecutions have no place in the courts of the United States.

The weight of the law

To achieve its goal of punishing Trump’s enemies, expanding his power to order troops into U.S. cities, and continuing to allow federal agents to abuse the rights of racial minorities and immigrants, just to name a few, Trump needs the cooperation not only of the Justice Department but of the federal judiciary.

As shown above, he is failing badly. Instead, the Trump regime is being met with sustained resistance and deep skepticism by the judiciary. It is losing most of its cases at the district level and seeing its attorneys disqualified and its credibility shredded at every turn.

“But what about SCOTUS?” comes the inevitable question.

While the Supreme Court majority has granted Trump significant leeway, it has not expressly ruled in his favor either. By continuing, through its emergency docket, to lift temporary and preliminary injunctions while the cases wind their way through, infuriatingly, the Court has allowed many of Trump’s policies to move forward, even as the cases challenging them are litigated.

But eventually, these cases will catch up to the Court. After all, these matters were not dismissed and will still proceed to trial, where permanent injunctions could and likely will issue and then inevitably will be appealed. At that point, however, the cases become too multitudinous for the Supreme Court to act against all of them. Talk about flooding the zone.

Trump may ultimately score some major victories in the cases the Supreme Court does take up, but already there are signs even the radical justices are prepared to impose some limits.

The Court ruled in April, for example, that even migrants accused of criminal gang membership have due process rights that must be respected. It unanimously ordered the White House to facilitate the return of Abrego García.

The Court also recently turned back Trump’s attempt to fire Federal Reserve Governor Lisa Cook, apparently prepared to back up its earlier assertion that the Federal Reserve is more like a quasi-private entity than a government entity under the purview of the executive branch.

Just this week, the Court, in a move surprising to many observers, declined to impose an administrative stay on Judge April Perry’s order, which disallowed the deployment of the federalized National Guard into Illinois. Instead, the justices set a relaxed briefing schedule over the question of what constitutes “regular forces” under Title 10, suggesting that at least some justices believe the entire deployment may have been outside the President’s statutorily granted powers.

And the question of Trump’s power to impose tariffs is about to reach the Court for the first time, coming off an en banc decision by the Federal Circuit. That decision had upheld a lower panel’s unanimous decision that Trump’s “emergency” tariffs exceeded his authority.

All this paints a fairly grim picture for the regime’s prospects of massive judicial victories. With the legal authority of several of its U.S. attorneys in serious doubt, its witnesses and declarations under a cloud of misrepresentations and material omissions, and its very motives for bringing charges now deeply suspect, the way forward presents a slog at each turn for the Justice Department.

That has profound implications if and when the Trump White House next attempts to claim unfettered power, as fascist regimes inevitably do. Trump could do this by sending in federal troops, arresting political opposition, and clamping down on free speech and free assembly.

But if its litigation record to date is any indication of its overall competence and credibility, the White House should think twice before pursuing these larger illegal aims. The federal courts will likely move to block them, and perhaps more importantly, will provide the legal justifications for both civilians and the military to refuse to go along.

Could an emboldened judiciary, backed by the people and those who choose to obey their sworn oaths to the Constitution, suffice to beat back Trump and MAGA fascism? It’s a gamble even Trump himself may not wish to take.