The Trump Administration Got Caught Lying to the Supreme Court Again
Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
Almost as soon as Donald Trump returned to the White House, the Justice Department began lying to federal courts in an effort to conceal its flagrant lawbreaking. Most notoriously, DOJ lawyers falsely told a federal judge that the government would not deport Venezuelan migrants without due process—a whopper that has subjected them to potential criminal contempt. But the agency sneaks smaller, less flashy falsehoods into its arguments all the time. These fibs might seem minor on their own, but they add up to a concerted campaign against reality, a dangerous attempt to reject out of hand any facts that reveal the administration's corruption and lawlessness. Lower court judges have consistently pushed back against this gaslighting. The Supreme Court, by contrast, seems to welcome it.
On this week's Slate Plus bonus episode of Amicus , Mark Joseph Stern spoke with Leah Litman about the Justice Department's latest disappointment and a judge's refusal to stay silent while government lawyers distort the truth. Litman is co-host of the Strict Scrutiny podcast, a professor at the University of Michigan Law School, and author of the new book Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes . A preview of their conversation, below, has been edited and condensed for clarity.
Mark Joseph Stern: On Monday, US District Judge Susan Illston released a pretty unusual “ statement ” accusing the government of providing false information to the Supreme Court. What happened here?
Leah Litman: This is the case involving the federal unions' challenge to the administration's mass layoffs. It's a follow-on from the Supreme Court pausing Judge Illston's decision blocking an executive order that had instructed these agencies to provide plans for reductions in force and agency restructuring. In that order , the Supreme Court said: We're not deciding whether an individual challenge to a particular proposed reduction in force is unlawful. That aspect of the case can proceed. So that is the issue to which Judge Illston turned her attention, looking at the individual proposed reductions in force for all of the relevant agencies. This came about through discovery, dating back to May, in which she ordered the government to produce plans for reductions in force for her to review so she could assess whether they were, in fact, legal.
And what exactly did the government tell Judge Illston that she flagged as simply untrue?
This only arose because the government filed a petition for a writ of mandamus asking a higher court to block this discovery. And the judge said: OK, well, this is an opportunity for me to clarify what is really going on here . The government, she noted, had told the Supreme Court that her initial order—which the Supreme Court remained—affected 40 proposed reductions in force in 17 agencies. That mattered, because when the Supreme Court stayed his order, it found that the likelihood of “irreparable harm” weighed in favor of the government. The size of her order's impact purely mattered in their analysis.
But Judge Illston discovered that those numbers were wrong: There's actually only 31 reductions in force applicable to 10 agencies. The government boosted the numbers in each category.
So the government made it sound like it was facing significantly worse “harm”—if we're defining harm as being unable to unlawfully purge civil servants from the federal workforce—and ran to the Supreme Court jumping up and down with these eye-popping numbers. And Judge Illston came back and said: Those numbers were obviously wrong. And the fact that they were wrong shows exactly why I am allowing this discovery, because you are not giving the whole truth.
Exactly. I mean, the judge was vindicated. And this is part of a pattern of what the administration is doing with lower courts: It is trying to block them from uncovering the facts, dragging its feet, then waving its hands to create some uncertainty about the facts—all designed to obstruct lower courts' ability to enforce the law against the administration.
Judge Illston is now approximately the thousandth jurist to warn us that this Justice Department simply cannot be trusted to tell the truth. At what point might the Supreme Court's Republican-appointed majority be made to care about all these lies?
I mean, never? It's not like they don't know this administration lies. This goes back to the first Trump administration and the litigation over the Muslim ban. Part of the challenge in that case was whether the ban included a meaningful process of waivers, whereby the government would actually waive this ban as applied to individuals who could demonstrate that they were not a security threat and had adequate vetting. And before the Supreme Court, then–Solicitor General Noel Francisco represented that this waiver process was real, and consular officials could grant it.
Well, some reporters— including at Slate —spoke to several consular officials who said, no, the directive is that we can't grant waivers. They have to go through the State Department, which underscores that the “waiver process” was not that meaningful. So the Supreme Court knows the Trump administration has already pulled the wool over their eyes. It has done so repeatedly.
And it's not just in this case: In an earlier matter involving the attempted closure and freezing of funds at USAID, the federal government represented to the Supreme Court that the lower court order blocking the funding freeze would have required them to immediately pay out a vast number of contracts, an amount of money that was just so difficult to disburse. But if you looked at the facts developed in the lower court, it turned out that, months before, the government was able to process that amount of money in hours . So the justices know this is happening. This has been brought to their attention. And the lying liars on the Supreme Court just don't seem to care that much about it.
Looking at the facts developed in the lower court—what a concept! It almost feels naive to think that these justices would do such a thing. They seem to start from the presumption that the lower courts are misrepresenting the facts if they rule against the Trump administration, which flips the burden on its head, but I guess that's just where we are?
They prefer alternative facts. That's just the rule.
Sign up for Slate's evening newsletter.
