The Trump DOJ's Incompetence Shouldn't Distract From Its Awfulness
In President Trump's second term, the Department of Justice has been illegally firing and inducing the departure of many of its best lawyers. Although many competent lawyers remain, those that do are overworked. In addition, they must toe the line laid down by DOJ leadership who are happy to discard generations-old norms of independence to make the department into an instrument of the president's vindictive will. And to partially fill the depleted ranks, DOJ has been lowering its standards and raising the bar on ideological purity. Although that last link points to an article concerning the Civil Rights Division, the problem exists throughout DOJ.
As a result of DOJ's competence deficit, it was hardly surprising to discover that in its two most recent high-profile lawsuits aiming to block states from exercising their constitutional powers to conduct congressional elections, the DOJ committed blunders. I mentioned one of these in passing in my Verdict column yesterday. The column discussed the meritless DOJ lawsuit seeking to preemptively enjoin Alaska from certifying an election winner due to the presence on the ballot of two candidates with nearly the same name. After explaining the substantive flaws with the lawsuit, I added that the complaint DOJ filed
also displays poor lawyerly craft. As Professor Richard L. Hasen noted on Slate last week, the portion of the complaint that seeks injunctive relief omits any “verb specifying what the Trump administration is actually asking a judge to do, which is to issue an injunction ‘blocking’ certification.”
That particular sloppiness is simply sloppiness. If the DOJ's suit against Alaska were otherwise meritorious, a judge would be warranted in construing the prayer for relief as asking to block certification. By contrast, the incompetent lawyering that infected the DOJ's suit seeking an order that California set aside 20,000 mail-in ballots that DOJ asserted were from "likely" non-citizens may well have been dispositive. To see why, I need to go briefly into the procedural weeds.
On October 15, DOJ filed a lawsuit against California and some of its officials, complaining that the state was refusing to comply with its demand to segregate the ballots of the people identified by the federal government as likely non-citizens. Four days later, on October 19, DOJ sought a temporary restraining order (TRO). Its motion stated in bold letters that it was asking for a ruling by November 3, 2026, i.e., Election Day. On October 21, Federal District Judge Carter scheduled a hearing for October 27, promising to rule quickly and certainly before the November 3 deadline that DOJ requested. Hours later (at 9 pm on October 21), DOJ filed a "Request for Expedited Ruling on TRO," stating that it now wanted a ruling by noon the next day.
Noon on October 22 (i.e., three hours into the work day since the filing of the request for expedited ruling) came and went without a ruling from Judge Carter, so the DOJ took the extraordinary step of running to the Ninth Circuit complaining that the judge's failure to rule on its schedule amounted to a constructive denial. In a 2-1 decision, that court rejected the request. The court gave multiple reasons for its decision, but one of them that would have been sufficient by itself was the fact that any emergency was of the DOJ's own making. Why had it asked for a ruling by November 3 only to then say it needed a ruling by noon on October 22?
The DOJ's answer was that the County of Los Angeles had already processed over 300,000 mail-in ballots and was continuing to process ballots--some number of which could be of people on the DOJ's likely-non-citizen list. But, as the Ninth Circuit decision emphasized, that should not have come as a surprise to the DOJ, because California's ballot-processing timing and rules had been public knowledge well before DOJ filed its lawsuit. If the DOJ wanted a ruling before the processing of mail-in ballots started, it should have sued earlier and should not have listed November 3 as the date by which it needed a ruling. DOJ offered no explanation for its failure to undertake rudimentary research into how elections in California operate. Although there were additional compelling reasons to deny the government's request, the fact that it was claiming the District Judge had somehow unreasonably delayed ruling when DOJ itself was responsible for most of the lost time would have been an independent basis for the Ninth Circuit's decision.
Chief among those additional reasons was the fact that the California case was meritless in pretty much the same way that the Alaska case is. Article I, Section 4 of the Constitution gives states responsibility for the manner of holding congressional elections, subject to override by an Act of Congress. In the Alaska case, DOJ claims that hortatory language in the preamble to the National Voter Registration Act (NVRA) should be construed to impose unspecified requirements regarding candidates with similar names, even though Alaska has taken quite reasonable measures to mitigate voter confusion (and is under no statutory or other obligation to do so in the first place). In the California case, DOJ claims that criminalization of non-citizen voting means California must take whatever steps DOJ thinks appropriate to prevent non-citizens from voting, even though California takes quite reasonable measures to prevent non-citizen voting and even though the federal statute operates on individuals, not states. If ideological consistency, as opposed to fealty to Donald Trump, were the guiding principle of DOJ, it would never have filed these lawsuits, which show utter disrespect for Article I, Section 4 and principles of federalism more broadly.
In the California case, there is also the fact that the list of "likely" non-citizens is almost certainly baloney. Judge Bennett's concurrence notes that 39% of the names on the DOJ list for whom place of birth is ascertainable are of people who were definitely born in the United States and are thus citizens. Given the Trump administration's record with respect to other states of wildly overstating the number of non-citizens who are being allowed to vote, it is likely that most of the rest of the "likely" non-citizens either didn't receive ballots or are in fact citizens. As in the Alaska case, so in the California case, the DOJ combines false claims about the law and the facts with bad lawyering.
Is it reassuring that the DOJ is staffed with over-worked lawyers, many of whom are hacks hired or retained for their loyalty to Trump? One might think that incompetence is a blessing in an authoritarian regime because it makes the regime less effective at authoritarianism. While that can be true, as in the California case, incompetence can sometimes exacerbate a bad regime's flaws. There are still parts of the government that are more or less operating. And incompetence in running, say, an ICE detention center, will tend to make terrible conditions even worse. On balance, it's hardly clear that incompetence mitigates malice.
-- Michael C. Dorf