Judge is skeptical of DOJ lawsuit against entire Maryland federal bench

The Justice Department’s lawsuit against all 15 federal district judges in Maryland over limits to the pace of deportations was met with skepticism Wednesday by another judge, who presided over a rare courtroom battle pitting the executive branch against the judiciary.

The lawsuit alleges that the U.S. District Court in Maryland, its judges and chief clerk have been violating federal law this year with a standing order that grants a two-day stay of removal proceedings to anyone who files a petition claiming wrongful detention. About a dozen deportations had been paused by the order as of last month, complicating the Trump administration’s efforts to ramp up immigration enforcement.

Judges across the country, including Maryland’s chief federal district judge, have said the courts are scrambling to keep up with a crush of petitions from migrants, which sometimes arrive on weekends or holidays. Attorneys for the Maryland judges say the two-day pause on deportations is a triage measure that wouldn’t be needed if administration officials gave the courts enough time to conduct their work.

At Wednesday’s hearing in Baltimore, U.S. District Judge Thomas Cullen of Virginia told an attorney from the Justice Department that he had “some skepticism” about letting the lawsuit proceed. If the executive branch were allowed to sue all the federal judges in one district, nothing would stop it from filing suits against the U.S. courts of appeals or even the justices of the Supreme Court, Cullen said.

Cullen, who was assigned to hear the case by the chief judge of the Richmond-based U.S. Court of Appeals for the 4th Circuit, said opening the door to such showdowns would test the separation of powers while raising a tangle of novel legal issues.

“We get into a situation where the individual judicial defendants are subject to depositions. Their internal correspondence, emails, would be subject to discovery,” Cullen said at the hearing, adding that the courts could likewise start probing “officials in the White House, all their correspondence and communications.” Questions would abound on thorny issues of judicial, executive and attorney-client privilege, he said.

The Maryland judges asked him to dismiss the case; the Justice Department asked for an injunction ending the two-day pause on deportations. Cullen said he would issue a written ruling by Labor Day.

Legal observers have described the lawsuit, filed in the same Maryland federal court being sued, as an unprecedented attack on judicial independence. Dozens of lawyers and retired judges filed briefs in the case arguing that the two-day pause on deportations gives judges a bare minimum of time to review legal claims, and that the Trump administration is trying to prevent the courts from upholding basic rights.

Attorneys from the Justice Department’s civil division say it’s the Maryland judges who are leading an unprecedented intrusion into the president’s domain over immigration, describing the standing order, entered by Chief Judge George L. Russell III in May, as “a particularly egregious example of judicial overreach.”

At least five appellate circuits automatically grant temporary stays of deportations in emergency matters, according to lawyers for the Maryland judges. The 4th Circuit, which handles all appeals from Maryland, has a policy of staying such cases for two weeks.

The two-day pause involves “habeas corpus” petitions, meaning court filings in which people who have been taken into custody by authorities challenge the legality of their detention. Such petitions are “probably the most important writ that a federal district court can undertake,” Cullen said, suggesting the temporary pauses are “essentially being implemented so the court can take a breath” and assess key initial facts about each case.

Justice Department attorney Elizabeth Hedges conceded that the United States had never filed a lawsuit against all the federal judges in one district. She also credited the Maryland federal court for dismissing several of the habeas corpus petitions after the two-day pause, once judges found they lacked merit. She argued that the standing order was nonetheless illegal, but said she could not imagine a scenario in which the Justice Department would be “opening the floodgates” and suing federal appellate courts.

“This is a lawsuit to settle … irreconcilable differences,” Hedges said. “This is not an assault on the separation of powers.”

Private attorneys representing the Maryland judges, including Paul D. Clement, a leading conservative lawyer who served as solicitor general under President George W. Bush, argued in legal filings that the Justice Department could have challenged the automatic pause on deportations in any of the cases in which it has been applied rather than taking the extraordinary step of suing all the federal judges in the state. None of them could hear the case because they recused themselves to avoid a conflict of interest.

“The bottom line is that this suit is without precedent and wreaks unprecedented havoc on the Judiciary,” the judges’ attorneys wrote. They added that “despite being open as a matter of law at all hours,” the federal court is “not a Denny’s.”

At the hearing Wednesday, Clement said the Justice Department probably would have gotten a definitive ruling on the standing order from the U.S. Supreme Court by now if the department had taken the normal step of filing an appeal, rather than suing the district judges.

“All of the alternatives that are available avoid that kind of nightmare scenario” of executive-branch lawyers cross-examining judges, and lawyers for the judges grilling White House officials in open court, Clement said. He argued that the judges, the court and its clerk all had legal immunity.

President Donald Trump and his appointees have criticized federal judges who have ruled against key administration initiatives this year, and Justice Department officials also took the rare step of filing a complaint against the chief federal district judge in D.C., James E. Boasberg. The complaint alleges that Boasberg made improper comments - relaying concerns from colleagues that the Trump administration might flout court orders - at a working breakfast hosted by Chief Justice John G. Roberts Jr. during a judicial conference this year.

Boasberg in March had ordered the Trump administration not to fly migrants to El Salvador under the wartime Alien Enemies Act as he continued to hear arguments in that case. The Supreme Court ruled the next month that such deportees had a right to challenge their removals in court before being flown out of the country. Boasberg later found probable cause that Trump officials disobeyed his ruling, resulting in a criminal contempt inquiry to determine who was responsible.

Trump appointees on the U.S. Court of Appeals for the D.C. Circuit reversed that ruling last week, ending Boasberg’s contempt inquiry.