The judges who are supposed to trust the government's word are starting to believe that trust is extinct.

"I don't think in the annals of the Department of Justice, in the history of jurisprudence in the United States, we've ever seen anything close to this."

— Former federal Judge John E. Jones, appointed by George W. Bush

For centuries, American courts operated on a simple presumption: when the government shows up in court and makes a statement of fact, the judge takes it as true. This is called the presumption of regularity, and it is one of the quietest mechanisms that holds the legal system together. The idea is not that the government is infallible, but that its lawyers, prosecutors, and agents are officers of the court who follow the rules and tell the truth. It is the baseline assumption that lets the adversary system function.

Under Donald Trump's second term, that baseline assumption is breaking down. Across multiple districts and across both Republican and Democratic appointees, federal judges are writing scathing orders that explicitly reject the presumption of regularity as applied to the Department of Justice. ProPublica reviewed hundreds of cases since January 2025 and found more than 40 in which judges directly questioned or overruled the presumption. In an era of partisan gridlock, the shared reaction from the bench is what makes this extraordinary.

The pattern is not subtle. In Rhode Island, Trump-appointed Judge Mary McElroy quashed a subpoena request from federal prosecutors investigating a hospital's care of transgender children. The judges found that DOJ lawyers had withheld information, misrepresented facts, and inappropriately claimed their investigation was operating out of Texas to secure subpoenas targeting medical records in another state.

"The discrepancy between the honorable conduct expected of federal prosecutors and DOJ's tactics in this case is unsettling," McElroy wrote. "The presumption of regularity that has previously been extended to [DOJ] that it could be taken at its word, with little doubt about its intentions and stated purposes, no longer holds."

In New Jersey, Biden-appointed Judge Christine O'Hearn went further. She ruled that her court would "no longer blindly accept statements of fact from the U.S. government unless they are made under oath by an individual with personal knowledge." This was not a hypothetical complaint. The government had filed documentation claiming a detainee had been convicted of marijuana possession in 2009. The detainee would have been four years old.

Translation: when the DOJ tells a judge a story, the judge now needs proof that the story is true. That is the opposite of how the system is supposed to work.

The erosion extends well beyond immigration cases, though that is where the most visible damage has occurred. In Minnesota, Judge Patrick J. Schiltz, a George W. Bush appointee who clerked for Antonin Scalia, slammed the government for using a grand jury to "harass political opponents" following the violent ICE raids that killed two American citizens in Minneapolis. He called the tactic "blatantly unlawful and unethical."

In Indiana, Trump-appointed Judge James Patrick Hanlon ordered the release of a lawful U.S. resident from ICE custody after the government failed to overcome what it once considered an impenetrable presumption. In Ohio, another Bush appointee, Judge Michael R. Barrett, ordered ICE to release a detainee after concluding the government had not presented a reasonable argument.

In Maryland, Obama-appointed Judge Paula Xinis watched the illegal deportation of Kilmar Abrego Garcia to El Salvador unfold in real time. Her words became the shorthand for a growing judicial consensus: "You have taken the presumption of regularity, and you've destroyed it."

The pattern is bipartisan in its authorship and bipartisan in its targets. Judges appointed by Trump, by Bush, by Obama, and by Biden are arriving at the same conclusion through different cases and different districts.

What explains the shift? Part of it is structural. Trump has profoundly redirected the priorities of the Justice Department from civil rights enforcement and regulatory compliance to mass deportation and political retribution. Veteran lawyers have left in droves. The Natural Resources Defense Council alone absorbed eight former DOJ litigators last year out of ten new hires.

But the more significant factor is the quality of the work product that has appeared in courtrooms. ProPublica's review identified DOJ filings that included statements generated by artificial intelligence referencing nonexistent case law, briefs that ignored material facts, and declarations with inaccurate dates. These are not the kinds of errors that occur when a department is stretched thin. They are the kinds of errors that occur when a department stops treating accuracy as a value.

Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former federal judge, described what is happening as more political conflict than normal legal disagreement. "It's really one branch that is really sort of questioning the legitimacy of the other one," he said. "I think the judges are trying to stand up for the legitimacy of their branch."

The government has noticed. Judges are not just losing faith in the DOJ, they are sanctioning its lawyers. Miami federal Judge Kathleen Williams referred Trump's lead lawyer in the president's own lawsuit against the IRS, Alejandro Brito, to the Florida Bar for potential disciplinary proceedings. McElroy in Rhode Island referred DOJ lawyers to a review board for possible discipline. She wrote that the department had "proven unworthy of this trust at every point."

The Justice Department's response has been dismissive. Spokesperson Kiersten Pels said its attorneys are "dedicated public servants who represent the United States with integrity." When pressed on specific cases, the DOJ pushed back hard, calling a magistrate judge in D.C. "wrong on the law" and alleging a "long-standing documented pattern of editorializing from the bench."

The problem for the DOJ is that the judges doing the editorializing include several people appointed by Republicans. John E. Jones, the former Pennsylvania judge whose quote opens this article, was a George W. Bush appointee. Schiltz in Minnesota was also a Bush appointee who clerked for the Supreme Court's most celebrated originalist. Hanlon in Indiana was appointed by Trump himself.

When Trump's own judges start accusing his own lawyers of dishonesty, the defense that this is partisan criticism falls apart.

The erosion of the presumption of regularity is not merely a procedural concern. It is a signal that the institutional scaffolding of American law is being stress-tested by an administration that has shown little patience for rules that do not serve its immediate objectives. The presumption existed because a functioning legal system needs a baseline of trust between the bench and the bar. When that trust is gone, every case becomes a credibility contest. Every factual assertion must be independently verified. Every government filing must be treated as suspect until proven otherwise.

The system can still operate under those conditions, but it will be slower, more adversarial, and far less efficient. The government will lose more cases as a result, according to Mitch Bernard, chief counsel at the Natural Resources Defense Council. Judges across jurisdictions are not only ruling against the government but calling it out for dishonesty and dissembling.

The judges are not doing this because they dislike Trump. They are doing it because the documents in front of them require it. When a government files a claim that a four-year-old was convicted of drug possession, the presumption of regularity does not protect the filing. When prosecutors misrepresent the jurisdiction of their own investigation, the presumption does not shield them. When the department systematically files false statements and ignores court orders, the presumption evaporates.

The question is not whether the presumption of regularity will return. The question is what happens to a legal system during the long years when it does not exist.