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Donald Trump’s Department of Justice thinks it has found a way to deal with the many judges who refuse to tolerate its unethical behavior: forum shopping key cases to MAGA judges across the country who are much more likely to reward underhanded tactics. The administration road tested this method in immigration cases by shuttling noncitizens to Southern detention centers within the jurisdiction of far-right courts. DOJ lawyers then pulled a similar trick to enforce a subpoena against a Rhode Island hospital that provided gender-affirming care to minors—only to see it blow up in their face. On Wednesday, Judge Mary S. McElroy a federal subpoena seeking medical records and personal data of these children. She castigated department attorneys over their “appalling” and “reckless disregard for the duty of candor” and described them as “unworthy of this trust at every point.” Remarkably, McElroy also called out the ultrapartisan federal judge, Reed O’Connor, who tried to enforce the illegal subpoena from his Texas courtroom.
On this week’s Slate Plus bonus episode of Amicus, co-host Mark Joseph Stern spoke with Madiba Dennie—deputy editor of Balls and Strikes and author of The Originalism Trap—about McElroy’s incandescent takedown of the DOJ and the pliant judges bolstering its agenda. An excerpt from their conversation, below, has been edited and condensed for clarity.
Mark Joseph Stern: Judge Mary McElroy did not just tell the Justice Department it had no authority to demand all this highly sensitive information based on healthcare “fraud” that wasn’t fraud at all. She also scorched the DOJ lawyers—and specifically one high-ranking official, Lisa K. Hsiao—for deeply unethical behavior. She wrote that Hsiao’s assertions to the court were “at best, deceptive, if not intentionally and knowingly false.” And she said the “presumption of regularity” that the DOJ “could be taken at its word—with little doubt about its intentions and stated purposes—no longer holds.”
Judges flaming DOJ lawyers from the bench has been a pretty steady drumbeat over the past 16 months. But it seems to me that this is something more: an epitaph for the DOJ’s credibility that could have real consequences for its ability to prevail in future cases that have nothing to do with this one.
Madiba Dennie: I think that’s right, and I’m glad to see a judge saying it. The Justice Department built up this reputation over decades of extreme competency—like, really qualified people who were obviously going to do the ethical thing and never lie to judges. Now we have seen Trump’s DOJ break away from that repeatedly but still trying to use the benefit of the “presumption of regularity”: DOJ lawyers telling courts to just assume that they’re telling the truth and doing everything in good faith. Now courts are asking: Why would we do that? We can see everything else you’re doing. There’s no reason to take what you’re saying in good faith.
It is a relief to hear a judge actually acknowledge that, because it does influence how cases play out. If you interrogate the DOJ just a little bit, you realize you should not defer to or take anything it says at face value. And that can have tangible effects. One clear example is that the standard courts use when deciding whether to halt a judge’s order or issue an injunction asks about the public’s interest. To evaluate the public’s interest, courts are supposed to look to the government’s interest. And if the government is a party to the case, then there’s often an assumption that the public’s interests and the government’s interests are the same. Like hell they are! There is no reason to assume that when you can’t trust that the government is doing what it’s supposed to do.
I think courage is contagious in this context too. McElroy quoted other courts who had previously said that this DOJ no longer deserves the presumption of regularity. And we heard something similar during the Immigration and Customs Enforcement crackdown in Minnesota, when there were tons of illegal arrests and detentions and all these federal judges said they just could not trust this DOJ anymore, issuing sanctions against department lawyers who broke the law. It’s important to get this outrageous conduct on the record and say the judiciary should assume that these attorneys are lying until they can prove that they aren’t.
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Which leads us to the other fascinating part of this case: I’d hope any judge would feel the same way as McElroy when confronted with the administration’s unlawful effort to obtain protected information about vulnerable children. Gender-affirming care, after all, is not “fraud”; it is expressly protected under Rhode Island law, so you might think any judge would laugh this case out of the courtroom. But what happened here is that when the Trump administration could not immediately intimidate Rhode Island Hospital into turning over this information, it ran to Texas, to the courtroom of Judge Reed O’Connor, and asked him to enforce its illegal subpoena.
For those who don’t know American geography, Texas is not Rhode Island, nor is it particularly close. Yet O’Connor gave the administration everything it wanted. He almost immediately issued an order to enforce the subpoena before even giving the hospital a chance to respond. And McElroy called this out in her opinion. She laid out how O’Connor played along with this flagrant judge shopping—she actually quoted a past speech in which he defended judge shopping. And she wrote that “it is clear” that that was what happened here.
But here’s the jujitsu move: McElroy then neutralized O’Connor’s order to enforce the subpoena by nullifying the subpoena itself, because the DOJ had failed to identify any possible law-breaking by the hospital. Basically, she said: Judge O’Connor, you think you can mess with a case in my state? You think you can order a Rhode Island hospital to comply with a subpoena from your court in Texas? Well, I’m going to quash the entire subpoena, so good luck enforcing something that doesn’t legally exist.
It’s great because she’s not overriding another judge’s order. There’s no actual conflict here. What she’s targeting is the lawless underlying subpoena, saying it was unenforceable to begin with. She told O’Connor: I’m not saying your enforcement order was wrong. I’m just saying this can’t be enforced. Which is true, and any non-MAGA-pilled judge would’ve picked up on it. It’s absurd to ask for an obscene amount of information about these kids—this subpoena was clearly about harassing them and trying to stop them from getting the healthcare they need.
O’Connor is, indeed, one of themost notoriouslypartisan judgeson the bench. MAGA-pilled is exactly right. He loves having Republican cases shopped to his courtroom. Do you think it matters that McElroy is calling him out and saying, actually, that this is her case? There’s so much decorum among judges, this infamous brotherhood of the robe, that keeps them from directly criticizing one another. But McElroy is pretty shady toward O’Connor. And it seems important to have one judge say this about an out-of-control colleague who’s seizing cases from a thousand miles away.
It definitely stands out, because judges do this only when they’re very distressed. This is not typical behavior. I’m also thinking about how the Judicial Conference tried to do something about judge shopping once, and the judges who love being shopped to got upset and stopped it. I wonder if we’ll finally see some movement to rein in judge shopping if judges actively call out this behavior in their opinions. Having judges acknowledging this outright—by publicly criticizing their colleagues for going along with it—seems like a requisite for doing something about it.