Judge destroys DOJ’s ‘not normal’ lawsuit against whole federal court, calls out Trump, Bondi and Noem without naming them

While completely destroying the DOJ’s lawsuit against a whole federal court in Maryland and its judges, a judge appointed by President Donald Trump slammed the executive and certain cabinet members for their persistent attacks on the judiciary when cases and issues don’t go their way.

Pointing out that “these are not normal times,” U.S. District Judge Thomas T. Cullen declined to entertain the merits of the government’s “novel and potentially calamitous” lawsuit, which claimed that Chief U.S. District Judge George Russell III’s standing order for two-day stays in response to an “influx of habeas petitions” amounted to a judicial usurpation of the administration’s immigration enforcement agenda.

Instead, Cullen dismissed the case in its entirety, and for multiple reasons — the most basic of which is that the DOJ didn’t bother to appeal Russell’s standing order or complain to the Judicial Council of the 4th Circuit.

“But as events over the past several months have revealed, these are not normal times — at least regarding the interplay between the Executive and this coordinate branch of government. It’s no surprise that the Executive chose a different, and more confrontational, path entirely,” the judge wrote. “Instead of appealing any one of the affected habeas cases or filing a rules challenge with the Judicial Council, the Executive decided to sue — and in a big way.”

In a footnote, Cullen explained that what he meant by “not normal” was the cavalcade of invective lobbed at federal judges in public statements by “principal officers of the Executive (and their spokespersons),” appearing to directly criticize the president, U.S. Attorney General Pam Bondi and Homeland Security Secretary Kristi Noem.

Bondi in July, for example, called judges “rogue” for exercising their statutory authority not to appoint Alina Habba as U.S. Attorney for the District of New Jersey. The AG then engaged in legal gymnastics to keep Habba in place, maneuvering that another federal judge has since ruled unlawful.

Just days ago, Noem criticized a Barack Obama-appointed jurist for ordering the release of wrongfully deported alleged “human trafficker” Kilmar Abrego Garcia, calling the judge a “publicity hungry” and “Activist liberal” who showed “a complete disregard for the safety of the American people.”

Here is Cullen’s footnote in full, not naming Bondi and Noem but quoting the words they used — and apparently alluding to Trump’s “crooked” judges insult:

Indeed, over the past several months, principal officers of the Executive (and their spokespersons) have described federal district judges across the country as “left-wing,” “liberal,” “activists,” “radical,” “politically minded,” “rogue,” “unhinged,” “outrageous, overzealous, [and] unconstitutional,” “[c]rooked,” and worse. Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.

From here, the judge tore the complaint apart, first finding that the administration lacked standing to sue — that is, the government failed a three-part test to demonstrate it was harmed by brief stays in deportation cases. Cullen also ruled that the U.S. District Court for the District of Maryland and its judges are immune, with the jurists protected from lawsuits over judicial acts. Strikingly, Cullen additionally reasoned that even in a scenario where judges weren’t immune, the DOJ lawsuit would still fail “in its entirety” because it did not state a claim.

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“Dismissal of the Executive’s suit is appropriate because it has not pointed to a cause of action that permits this court to entertain a lawsuit between two coordinate branches of government, and this court will not be the first to create one,” he wrote, later noting that the “irreconcilable defects” of the suit “mandate dismissal” — without even reaching the merits of whether court-created two-day administrative stays “are a proper exercise of judicial power.”

Cullen indicated that even in “not normal” times, the government should take up its disputes with judges in an ordinary way, warming to one of the first arguments he heard on Aug. 13.

That day, the defendant judges’ attorney, former U.S. solicitor general Paul Clement, called the DOJ and the U.S. Department of Homeland Security’s move “fundamentally problematic” because it didn’t exhaust other available remedies to challenge the standing orders — like an ordinary interlocutory appeal to the 4th U.S. Circuit Court of Appeals or an extraordinary request for a writ of mandamus — before suing a coequal branch of the government.

In the end, the judge agreed that the “proper way” for the DOJ to proceed is the appellate process.

“Much as the Executive fights the characterization, a lawsuit by the executive branch of government against the judicial branch for the exercise of judicial power is not ordinary,” Cullen concluded. “The Executive’s lawsuit will be dismissed, and its motion for preliminary injunction denied as moot. Whatever the merits of its grievance with the judges of the United States District Court for the District of Maryland, the Executive must find a proper way to raise those concerns.”

After acknowledging during oral arguments that he doesn’t have a “very good poker face,” Cullen tipped his hand as to the eventual ruling by talking through the implications. For instance, he noted that the Trump administration could, if this suit were allowed, next sue federal appellate courts and its circuit judges or the U.S. Supreme Court and its justices.

The judge dedicated another footnote to the potential fallout from such a “novel and potentially calamitous litigation.” The Trump administration in essence purported to launch a “constitutional standoff into epic proportions,” which Cullen, who sits in the Western District of Virginia, said would necessarily follow if this lawsuit was taken seriously:

The mere filing of this suit required the recusal of the entire federal bench in the District of Maryland and the assignment of this out-of-district judge who, by this designation, is theoretically empowered to enjoin his fellow district judges and, by extension, hold them in contempt for violating the court’s orders. If the case were to survive a motion to dismiss, the parties—the individual judicial defendants and principal officers of the Executive, including the Secretary of Homeland Security and the United States Attorney General—would potentially be required to sit for depositions and produce documents, including emails and other internal communications, relevant to the issuance of the standing orders and the actual reasons for filing suit. These discovery demands, in turn, would almost certainly trigger claims of privilege—executive, judicial, deliberative-process, and the like—and invariably compound this constitutional standoff into epic proportions.

Read the full opinion here.

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