The Gavel: Justice Department stretched thin in Trump litigation onslaught

Firings, buyouts and restructuring across the federal government are hitting the Department of Justice (DOJ), even as it seeks to defend the Trump administration’s actions amid a flurry of lawsuits.

DOJ lawyer Josh Gardner said during a hearing last week that DOJ’s Federal Programs Branch has been “cut in half” since November, even as it has received roughly 80 lawsuits challenging various administration actions.

The cuts have left many Justice Department lawyers seriously outmanned in court. During a hearing over the administration’s directive to fire probationary employees across agencies, just one DOJ lawyer local to San Francisco represented the government while eight lawyers appeared for the plaintiffs.

“Every time I see my friend Chris, he looks sleepier,” joked lawyer Norm Eisen on Friday at another hearing. His group, State Democracy Defenders Action, is among those suing the administration on behalf of fired employees.

Eisen was referencing Christopher Hall, assistant branch director of the Federal Programs Branch.

Justice Department lawyers have signaled fatigue in recent weeks.

Joshua Stueve, a top spokesperson for the DOJ, resigned last week, citing the “hostile and toxic work environment” that has emerged in the agency.

Gardner said he’s been working ever since Trump was sworn in.

“I haven’t had a day off since January 20,” Gardner said during a Friday hearing. “We’re working day and night.”

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Independent agency firing challenges heat up

Battles between the Trump administration and the Democratic appointees he’s firing at various independent agencies are heating up in court.

Just since the weekend, federal judges permanently blocked the firings of U.S. special counsel Hampton Dellinger and Merit Systems Protection Board member Cathy Harris.

A judge on Wednesday will consider efforts by Trump to remove National Labor Relations Board Chair Gwynne Wilcox, and on Friday another judge will consider the effort to remove Federal Labor Relations Authority Chair Susan Grundmann.

Trump’s firings could rapidly set up a direct challenge to Humphrey’s Executor v. United States, the 90-year-old precedent permitting removal protections for independent agency leaders.

The Supreme Court has previously said Humphrey’s Executor doesn’t extend to agencies led by a singular official, as is true of Dellinger’s.

U.S. District Judge Rudolph Contreras, who ruled in favor of Harris, signaled Monday that her case and others will likely rocket to the Supreme Court.

“That’s where all of us are heading,” the judge quipped.

Catching up with Mexico's SCOTUS lawyers

The Gavel caught up with the Mexican government’s legal team minutes after they exited Supreme Court oral arguments Tuesday, when the justices gravitated toward the American gun industry’s bid to fend off the country’s $10 billion lawsuit.

The case revolves around a 2005 law that provides broad immunity protections to the gun industry. Mexico says its lawsuit, which claims gunmakers aren’t doing enough to stop their products from landing in the hands of cartels, falls under an exception.

We asked the team about a scenario posed by Justice Samuel Alito that the conservative said “may be on the minds of ordinary Americans” tuning in:

“Mexico says that U.S. gun manufacturers are contributing to illegal conduct in Mexico. There are Americans who think that Mexican government officials are contributing to a lot of illegal conduct here. So suppose that one of the 50 states sued the government of Mexico for aiding and abetting illegal conduct within the state's borders that causes the state to incur law enforcement costs, public welfare costs, other costs. Would your client be willing to litigate that case in the courts of the United States?”

“Mexico is not suing the United States in this case, so its not an equivalency,” Pablo Arrocha Olabuenaga, legal adviser to Mexico’s foreign affairs ministry, told us.

“We are suing gun manufacturers, which are private entities, under the terms of U.S. laws with the support of U.S. attorneys,” he continued. “So I think it’s pretty clear that that reference is a false equivalency.”

Noel Francisco, Trump’s former solicitor general who represents the gun industry, did not speak to reporters. But he released a statement after the argument saying there is “no such connection” between the gun industry’s “lawful operations and the criminal acts of third parties.”

Cert watch

Here are this week’s new relisted petitions. Check back next week to see if the justices take up any of the cases:

Ex Post Facto (Nielly v. Michigan and Ellingburg v. U.S.): The Constitution’s Ex Post Facto Clause prevents the government from passing criminal statutes that apply retroactively. In two separate appeals brought by criminal defendants, the court is being asked to extend the clause’s protections to court orders that they owe restitution. Both are represented by Big Law Supreme Court practices: Jones Day’s Amanda Rice represents one defendant, while the other is represented by Williams & Connolly’s Lisa Blatt (who has argued more than 50 cases at the court).

Capital case (Shockley v. Vandergriff): Death-row inmate Lance Shockley was convicted of first-degree murder for killing a highway patrol sergeant investigating him over a car crash. State courts rejected Shockley’s claims that a juror’s bias tainted his guilty verdict. Now, Shockley is attempting to raise the claim in federal court by filing what is known as a habeas petition. After a district judge rejected it, the 8th Circuit in a 2-1 decision refused to provide Shockley a certificate of appealability, which would allow him to appeal. Shockley has asked the justices to take up his argument that certificates should be issued even when only one judge on the panel agrees, as is true here.

Expert affidavits (Berk v. Choy): Some states’ laws require plaintiffs filing certain types of lawsuits to attach an expert’s affidavit confirming the lawsuit has reasonable grounds. After receiving care for an ankle and foot injury, Harold Berk filed a medical negligence lawsuit in federal court in Delaware, a state with such a law. But Berk attached no affidavit, so his case was dismissed. Berk argues Delaware’s law and others like it shouldn't apply to cases filed in federal court.

In/Out: The Order List

Click here to read Monday's full order list.

IN: Double jeopardy
The court took up its second case for the next term.

In Barrett v. United States, the justices will wade into the Constitution’s double jeopardy protections. Defendant Dwayne Barrett contests that he can't be sentenced for both carrying a firearm and using it to murder someone during a crime of violence, since both stem from the same 2011 robbery.

The federal government has long agreed that imposing sentences on both charges violates the Double Jeopardy Clause. But the Biden-era Justice Department had urged the Supreme Court to turn away the case and instead let a trial judge resolve the issue at Barrett’s resentencing.

OUT: Bias response teams

The court turned away roughly 75 petitions.

In Speech First v. Whitten, Justices Clarence Thomas and Alito dissented from the court’s refusal to take up a First Amendment challenge to bias response teams, which solicit anonymous reports of bias on college campuses.

“Given the number of schools with bias response teams, this Court eventually will need to resolve the split over a student’s right to challenge such programs.” — Justice Clarence Thomas

Though this case involved Indiana University, Speech First has filed nearly identical ones against universities across the country. When the Supreme Court last year declined to hear the group’s lawsuit against Virginia Tech, the two conservative justices similarly dissented.

No one has joined them, so Thomas and Alito fell short of the four votes required to hear a case.

Justices become 'potted plants,' again

Despite the barrage of lawsuits challenging his administration’s directives, Trump largely avoided discussing the courts during his address to a joint session of Congress Tuesday night.

Trump only addressed the Supreme Court once in the rare face-to-face moment, thanking them for their decision ending affirmative action in college admissions.

“You should be hired based on merit, and the Supreme Court in a brave and very powerful decision has allowed us to do so. Thank you,” Trump told the justices.

Well, some of them.

Only four sitting justices attended: Chief Justice John Roberts and Justices Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. Retired Justice Anthony Kennedy also joined. Trump briefly chatted with each of them as he approached the dais.

It’s a shift from when the majority of the sitting court attended all of former President Obama’s and former President Biden’s addresses (except for 2021, when COVID sharply limited the invite list).

And yet, Trump has only drawn a majority of the court once, during his first address in 2017.

Some of the justices have made clear their decision isn’t based on the Oval Office occupant.

Alito told The Wall Street Journal’s opinion section in an interview published last year that he used to feel like a “potted plant.” Alito hasn’t attended since 2010, when he was infamously caught on camera mouthing the words “not true” when Obama attacked one of the court’s decisions.

“There are some times when you have to stand up,” Alito said. “Like, ‘Don’t we honor the brave men and women who are fighting and dying for this country?’ — you can’t not stand up for that. But then you say, ‘Isn’t the United States a great country' — you stand up — ‘because we are going to enact this legislation’ — maybe you have to sit down.”

Thomas hasn’t attended since Obama’s first address in 2009. While speaking at a law school the next year, Thomas said it’s “very uncomfortable for a judge to sit there” since it has become “so partisan.”

“There’s a lot that you don’t hear on TV,” Thomas said at the time. “The catcalls, the whooping and hollering and under-the-breath comments.”

Trump, in the usual presidential fashion, greeted the justices upon his arrival and departure. He stopped to chat with Kavanaugh the longest in either instance and also briefly with Barrett. He appeared however, friendliest with Roberts, who Trump slapped on the back and said "Thank you again, thank you again, won't forget."

It's unclear what Trump was specifically referring to. Roberts authored the court opinion that determined core presidential powers were immune from criminal prosecution in the midst of a slew of Trump's criminal charges. It handed Trump perhaps his single biggest legal victory.

One thing to watch for future years: Justice Ketanji Brown Jackson, who attended both of Biden’s addresses after she joined the court in 2022, did not show up. Will it become a trend?

Decisions, decisions

Clean Water Act permits (City and County of San Francisco v. EPA)

The Supreme Court ruled 5-4 Tuesday that the Environmental Protection Agency’s (EPA) rules for the city of San Francisco under the Clean Water Act are overly vague, siding with the city after it appealed a lower court’s decision.

Alito wrote that the statute requires the EPA to outline specific limits on sewer overflows, instead of the generic limits that prompted San Francisco to sue, The Hill’s Zack Budryk reports.

Looking ahead...

Don’t be surprised if additional hearings are scheduled throughout the week. But here’s what we’re watching for now:

Today

The Supreme Court will announce opinions.

The justices will also hear arguments in a dispute over the temporary storage of nuclear waste in West Texas that could upend decades of federal nuclear policy.

A federal judge in Washington, D.C., will hold a summary judgment hearing in a challenge from a Democratic member of the National Labor Relations Board (NLRB) to her firing by Trump and the NLRB’s chair.

Another D.C. federal judge will hear arguments for a temporary restraining order in a challenge brought by the Personal Services Contractor Association over Trump's executive order blocking foreign aid and the administration's efforts to dismantle the United States Agency for International Development (USAID).

Four Democratic attorneys general will hold a town hall in Phoenix, Ariz., on the impact of federal firings and Department of Government Efficiency (DOGE) funding freezes across the country.

Thursday

A federal judge in Washington, D.C., will hold a preliminary injunction hearing in another case related to efforts to dismantle USAID, brought by USAID contractors and nonprofits.

Friday

A summary judgment hearing in a Federal Labor Relations Authority member’s challenge to her firing will be held by a D.C. federal judge.

Another federal judge in D.C. will hold a preliminary injunction hearing in a lawsuit seeking a judge to declare DOGE an agency subject to the Freedom of Information Act and order it to preserve all records.

Monday

The Supreme Court will announce orders.

A D.C. federal judge will hold an evidentiary hearing in a case challenging the apparent dismantling of the Consumer Financial Protection Bureau. Adam Martinez, the agency's chief operating officer, has been ordered to testify.

Tuesday

A preliminary injunction hearing in a lawsuit brought by several inspectors general fired by Trump will be held in D.C. federal court.

What we’re reading

POLITICO’s Rachel Bluth and Melanie Mason: 23 Dem AGs think they’ve cracked the code to fighting Trump

NPR’s Carrie Johnson: In the federal court system, law clerks find little recourse for bullying and abuse

Reuters’s Karen Sloan: ABA ramps up defense of judges as White House dismisses 'snooty' lawyers

National Law Journal’s Jimmy Hoover: Uber Eats and Burnt Toast: How Married Couple Balances Life, Supreme Court Arguments

The Wall Street Journal’s Kristina Peterson, Josh Dawsey and Laura Cooper: RFK Jr. and His Allies Target Trump’s Beloved Soda

We’ll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here.

Questions? Tips? Love letters, hate mail, pet pics?

Email us here: elee@thehill.com and zschonfeld@thehill.com.

Securely reach us on Signal here: @elee.03 and @zachschonfeld.48.

Updated at 8:08 a.m. EST

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