Justice and the Rule of Law [Trump Two Remix]

"Unlawful", "Unethical", "Unseemly": Regularity and the Trump DoJ

The hits come so fast they seem easily forgotten. ProPublica↱, last month:

From Washington, D.C., to Rhode Island to Oregon, federal judges nominated by presidents from both parties, including Donald Trump, have zeroed in on what's called "the presumption of regularity." It essentially means that judges must presume that the government — whether it be federal prosecutors, an IRS auditor or an FBI agent — did their jobs according to the rules and in good faith.

Until Trump's second term, which has seen an exodus of veteran DOJ lawyers and a transformative shift in priorities from issues like enforcing civil rights to instead defending a mass deportation agenda, this foundational tenet had rarely been discussed in federal courtrooms, former judges, lawyers and scholars say. But as Trump's DOJ exhibits behavior that judges have called "unlawful," "unethical," "unseemly" or otherwise dishonest, adherence to that bedrock standard is now being questioned.

ProPublica reviewed hundreds of cases since Trump retook the White House in which judges criticized the actions of DOJ lawyers and found more than 40 in which they explicitly referenced the presumption of regularity. In many cases, judges have expressed frustration that they can no longer take the government at its word.

"Judges simply don't believe the representations that are being made by United States attorneys, assistant United States attorneys and the like," said John E. Jones, a former federal judge for the District of Pennsylvania, appointed by President George W. Bush.

"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."​

"More than 40" is absurd. Consider the history of sneering, angry leftists condemning the whole damn system, hollering about corrupt cops, and even screeching for the abolition of prisons. And think about how much you hate them because they are so smug or condescending you think they sound, and then remember how long that part has been going on. There's a reason you loathe liberals and hate leftists.

And now the Department of Justice has vindicated them, has shown that damning critique is valid and in play.

And then remember: What was wrong with those leftists and their complaints is a belief that this never happens, is never supposed to happen, will not happen, and even cannot happen.

Yet, here we are, and the transition was pretty much seamless. The law enforcers were always this way; the difference is that someone empowered this dereliction.

The good cops aren't stopping them. They were never going to.

Fixing this mess, or at least as much of the damage as possible, will be slow and fraught, and subject to constant complaint and objection, and one thing to remember when bothsidesing and looking for what the smug, condescending left must concede in order to compromise, is that doing so is to perpetuate the problem. As a bothsides issue, there isn't much bothsides; as a blame issue, we are now reminded that trusting the good guys to come through as if they were honorable folk doing honorable work is a fool's errand. Think back when people tried to bothsides the megalomaniac Christianist cult leader in Texas with multiple child brides and―… oh, right, they didn't bothsides it but just blamed liberals for objecting.

Because that conservative populism is kind of durable and popular, and absolutely nobody should be surprised that it is conservatives who achieved the circumstance they fear. Meanwhile, this what it always meant that eternal vigilance is the price of our liberty. The question is not so much how they screwed that up, but if they ever believed it. And the thing about bothsides, here, is, sure, Republicans, but more than that we're also talking about the law enforcers themselves. To what degree is resigning just getting out of the way? How is stopping them simply not an option? I mean, I get there is a certain technical case to be made according to law and process and precedent, but that's the thing, did the proverbial good cops ever stand a chance?

Once upon a time, it was easy to disdain the moral indignance of criticism against law enforcers, but here we are, and we've kind of had a clue for, like, generations. It's one thing if the trade, the social contract, was that the law enforcers should never take it so far, but if that's the case, then think about what it means. It is impossible to contain such a contract, and makes the whole of justice transactional according to arbitrary satisfaction.

And if that's what we've been doing for the whole of the Republic, or even just the last forty to sixty years, then, yeah, we're doing it wrong. Who would declare more fool the majority of Americans over the period for believing in any of it?

Because, y'know, here we are.
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Notes:

McSwane, J. David, Pratheek Rebala, and Carla Astudillo. "Federal Judges Chastise Trump's Justice Department for 'Unlawful,' 'Unethical' and 'Unseemly' Conduct". ProPublica. 28 July 2026. ProPublica.org. 16 August 2026. https://www.propublica.org/article/justice-department-presumption-of-regularity
 
On Pace

In the United States, courts use a system known as PACER to track and present public records. Journalists, for instance, follow PACER in order to know what is happening in a case they are covering but not attending. PACER is a useful tool, part of the public record, and, sure, there is always controversial chatter about how it works, but those are different questions and issues. In short, PACER entries are how we know what happens without having the actual written orders.

Like in the example below, "Document Number: No document attached". That is to say, the judge hasn't finished writing the actual order, but has entered a decision.

Reporter Kyle Cheney↱ observes:

Magistrate judge denies US Attorney Pirro's second bid to lock up Melissa Farris on charges of vandalism to the World War II memorial. Says the office botched the standard and recycled argument he already rejected.​

That's actually a lot to know without the written order. Except it's also what PACER says. So, yes, this is a PACER entry:

Case Name: USA v. Farris
Case Number: 1:26-mi-00140-MJS
Document Number: No document atttached.

Docket Text:

MINUTE ORDER as to MELISSA FARRIS: On review, the Court DENIES the government's [11] motion for reconsideration. For starters, the government's filing largely misconstrues the nature of the Court's ruling by arguing that the Section 3142(g) factors demonstrate that Ms. Farris presents a risk of flight that cannot reasonably be mitigated with conditios of release, within the meaning of Section 3142(e). The Court did not reach those iussues in the context of a full detention hearing because it found that the government failed to show that it was even entitled to a ddetention hearing under Section 3142(f)(2)(A), based on the theory that this case presents "a serious risk that [Ms. Farris] will flee." The government's motion largely fails to grapple with the threshold issue that the Court actually decided. Moreover, the government itself invokes a standard that permits reconsideration "if the judicial officer finds that information exists that was not known to the movant at the time" of the hearing. But under that standard, the government's motion fails to identify any such new information that it contends was not known to it at the time of yesterday's hearing. To the contrary, the motion essentially just recycles the same arguments that the Court considered already. SO ORDERED. Signed by Magistrate Judge Matthew J. Sharbaugh on 8/18/2026. (znjb)​

Okay, so this is what just happened:

• The government wants to hold a defendant (Farris) without bail because defendant is allegedly a flight risk; the Court has already ruled against the government on this motion. Following that outcome, the government has come back to the Court for another go. Judge Sharbaugh denied that new motion, and observed:

1) DoJ ("the government") has misrepresented the Court's prior ruling ("largely misconstrues the nature of the Court's ruling") on oparticular grounds ("Section 3142(g) factors" per "Section 3142(e)" "within the meaning of Section 3142(f)(2)(A)"). The apparent implication that DoJ is misrepresenting the law itself remains implicit.

2) DoJ has misrepresented circumstance in order to falsely construe their pathway under law ("The Court did not reach those issues", "found that the government failed to show it was even entitled to a detention hearing").

3) DoJ has not addressed what the Court actually said ("The government's motion largely fails to grapple with the threshold issue that the Court actually decided").

4) DoJ has falsely claimed particular grounds for reconsideration ("the government itself invokes a standard that permits reconsideration … But under that standard, the government's motion fails to identify any such new information").

5) DoJ's hasty brief, filed as quickly as possible overnight, simply reiterates what already failed to convince the Court ("the motion essentially recycles the same arguments that the Court considered already").​

†​

Consider what we learn from this entry: The myriad subtlety is the sort of thing that is difficult to perceive from halfway around the world, so one general point we might describe feels wholly political: Historically, these are the people who used to complain about defense lawyers, judges, and technicalities.¹

But there is far more to it than that. Even in domestic discourse, this is a mess of little pieces. The characterization of DoJ behavior in this Minute Order very nearly describes an internet argument. And maybe at a backwater discussion board, or in the socmed cacophany, it feels somehow unfair to expect better, but this really does become a question of say-so² according to a fallacious appeal to authority.

But that fallacy is also a plot twist in its way. This is both the religious fanatic insisting on the insupportable by simply repeating it over and over again, and the abuser along the way to explaining what other people make him do. When the judge observed, "the motion essentially just recycles the same arguments that the Court considered already", the tacit part is that the Court previously found those arguments lacking: Look at what that judge made them do! They had to go in there and repeat themselves!

And how dare the Court force DoJ to misrepresent the record, the facts, and the law in order to remind His Honor.

Part of the subtlety, here, part of the plot twist, is that there is no absurd technicality in play. Moreover, the case should be an easy win. The defendant livestreamed the act, declaring that she wanted her case in court. How can DoJ possibly blow this?

In subsequent coverage, RawStory↱ reminds:

Monday's ruling was not Sharbaugh's first rebuke of Pirro's office. The AP reported last fall that he dismissed two felony assault cases at prosecutors' request and warned from the bench that cases were being charged before they were properly investigated.

"That's not the way it's supposed to work, and it has real-world consequences," Sharbaugh said at the time, according to the AP. "This is becoming a real concern for the court just given the sheer numbers," he added.​

This is, after all, the second go.

And if I had to guess, the one clear way for DoJ to further irritate Judge Sharbaugh would be to overcharge the defendant and exaggerate the flight risk, except that's behavior that has to be abused into the ground before judges play rough. Under ordinary circumstances, they might play along and see where it goes. So, while something goes here about the presumption of regularity, it's also starting to feel like prosecutors on the Farris case somehow don't have it.
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Notes:

¹ cf., "The Middle Road to Nowhere: How Stupid Can You Get?" #13↗ (2026), "For those old enough to recall … the tough-on-crime pitches of the Reagan years, it stands out that the conservatives who always played their politics by the barest of technicalities have become the people they used to despise: It's called getting off on a technicality", "in our moment, the more particular point to observe is the degree to which Republicans have come to rely on pretenses of a technicality in order to evade law and accountability"; "Civil Rights, Justice, and Representation" #1↗ (2022), "The hairsplitting offered law enforcers is the sort of stuff that, once upon a time, was the legend of sleazy defense lawyers winning on technicality". Forty years ago, when the pop song↱ described a judge "who had just returned from a three-drink lunch", and the "lawyer screamed, 'You must set him free!'", and thus, "off he went on a technicality", it criticized bleeding-heart liberals according to the false dichotomy of post-Miranda conservative-traditionalist dualism. And now, here we are, with that conservative-traditionalist heritage now relying on technicalities in order to justify and inflict, and to a certain degree they seem to be running out of those.

² see, "Charlie Kirk Shot in Utah" #129↗ (2026):

「These days, having lost on the merits, conservatives have fallen into a pattern we might call "byss". It's shorthand for the phrase, "because you say so". Once you grasp this concept, American conservatism makes a lot more sense.

What happened is that according to various rules of discourse, conservatives flat-out lost … To the other, though, there are things in this world they wanted, so they're still chasing ....

.... For conservatives, the politics that disagree with them can never be seen as having merit; thus, "liberal" progress is not based on any reason, in their opinion, but because some woman, or some black person, or some Muslim or queer or liberal, says so. Conservatives are sick of losing just because we say so. It's their turn, now, and they're going to take what they want because they say so. It's their turn to just say so.」​

Edwards, David. "Jeanine Pirro handed another big courtroom loss by judge who's tormented her". RawStory. 17 August 2026. RawStory.com. 18 August 2026. https://www.rawstory.com/jeanine-pirro-vandalism/
​
 
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