Justice Department lawyers struggle to defend a mountain of Trump executive orders

Most days this year, in courtrooms all over the country, the Justice Department has been busy defending President Trump's executive actions.

But in many of those cases, the government's own lawyers have been struggling to answer questions and having to correct the record. It's a function of how aggressively Trump has moved so far — and how the attorneys have been having a hard time keeping up.

"There have been over 130 lawsuits that have been filed in the past two months and that would be an extraordinary amount of litigation for DOJ to defend even if it were fully staffed, which it is not," said Kelsi Brown Corkran, who spent six years at the Justice Department. "It is far from it."

By some accounts, the unit inside DOJ that defends the federal government has lost more than a third of its lawyers this year. Top Justice officials have posted hiring notices on LinkedIn for some of those jobs, even as the department fired or transferred other senior lawyers.

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"It's sort of well-known that when Trump came into office there were a number of people at DOJ who decided to step down and even those who perhaps didn't choose to step down were nudged out, as they might say, so I think they were dealing with fewer people willing to help with these cases," said Josh Blackman, a professor at the South Texas College of Law in Houston.

That tight squeeze is leading to some mistakes. Last month, there was a typo on the first page of an appeals court brief signed by the attorney general and other senior officials.

Accused of "fast losing credibility"

Ryan Goodman, of New York University's law school, said he has a bigger concern: that DOJ lawyers are unable or unwilling to answer questions from judges.

"The Justice Department is fast losing credibility before the courts," Goodman said.

Goodman follows all these cases closely, starting with a challenge to Trump's order getting rid of birthright citizenship.

"The first one that had a hearing with a Reagan-appointed judge in Seattle, he actually said to the lawyers, 'Where were the lawyers in the room when you did this?'" Goodman said, loosely citing court transcripts.

That birthright citizenship order clashes with the 14th Amendment to the Constitution and a separate statute. And, Goodman said, the judge wanted to know who signed off that the order was legal.

The Justice Department office that usually does that review largely has been sidelined this year.

Federal judges also have had lots of questions about who's running DOGE, the Department of Government Efficiency team tied to Elon Musk, that's been slashing federal agencies. One DOJ lawyer told a judge they didn't know.

"It's not just, like, a fact, it's not a small detail," said Goodman. "It is a knowable fact. And to me that either suggests bad faith on the part of the Department of Justice or, and I think more likely, that they're not in the loop."

A DOJ spokesperson said in a written statement to NPR that "vigorously defending President Trump's executive actions in federal court is a top priority for this Department of Justice."

On her first day in office, Attorney General Pamela Bondi exhorted federal prosecutors to provide "zealous" representation to their government clients. In years past, including the first Trump administration, DOJ career attorneys could ask their supervisors not to participate in certain cases, because of moral or personal concerns.

But Bondi's memo suggested such requests would no longer be accommodated and that lawyers could be subject to discipline or termination if they failed to advance "good faith" arguments.

A fire drill of litigation

Blackman, who's a conservative lawyer, said every day brings a fire drill of emergency litigation in the courts.

"Usually, there are these fairly intricate interagency communications where people from different departments will meet and discuss what's sort of going on," Blackman said.

But that normal process seems not to be happening, partly because of so many executive orders and so many lawsuits.

Blackman said it's not fair to blame DOJ lawyers for not having some of those details.

"These are sort of novel times," he said. "And I think the government's lawyers are doing the best they can to deal with sort of this new paradigm that President Trump has brought in with his agenda, which is moving just very fast."

But in other cases, the Trump administration seems to be making a choice not to share information.

Take the lawsuit about dozens of alleged Venezuelan gang members who were sent to a notorious prison in El Salvador last month.

Lawyers for DOJ said they didn't know when the planes took off, or when Trump signed that order. When the judge grew upset, the administration invoked the state secrets privilege to avoid answering the question.

"That's not attorneys who are unprepared," said Corkran, the former DOJ lawyer who now serves as the Supreme Court director at the Institute for Constitutional Advocacy and Protection at Georgetown. "That's a strategic decision that the government has made not to divulge information."

And that decision, she said, will be tested by the courts.

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