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President Donald Trump’s Department of Justice keeps lying brazenly to judges, and more often than not, it refuses to correct the record while facing no real consequences in court. This past week, however, DOJ lawyers took the rare step of fessing up to a serious error, dramatically overstating the presence of federal agents in Portland in an effort to justify Trump’s deployment of the National Guard. This falsehood lay at the heart of a recent ruling greenlighting this deployment by a three-judge panel for the U.S. Court of Appeals for the 9th Circuit. Thankfully, the full 9th Circuit wiped away that decision on Tuesday, giving its members another opportunity to reconsider the case on the basis of truthful information.
On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the DOJ’s rather mortifying confession and its implications for the broader battle over Trump’s federalization of the Guard. A preview of their conversation below has been edited and condensed for clarity.
Dahlia Lithwick: The government got caught red-handed just straight up lying to the 9th Circuit last week. Full-on lying from the Justice Department is familiar at this point. How did department lawyers distort the record on this occasion?
Mark Joseph Stern: In its filings, the DOJ had told the 9th Circuit that 115 Federal Protective Service officers—nearly a quarter of the force nationwide—had been diverted to Portland to protect the Immigration and Customs Enforcement facility that was at the center of all of those protests. The FPS put that claim in a sworn declaration by Robert Cantu, who is its regional deputy director. That statistic was central to the government’s claim that regular federal forces were overwhelmed in Portland, so Trump had to call up the National Guard to execute the laws. And when the panel majority sided with the president, it cited Cantu’s declaration more than a dozen times as the basis for its factual and legal conclusions.
But this past week, as Law Dork’s Chris Geidner flagged, new evidence came out in discovery revealing that what the government had claimed was wrong. It turns out, the plaintiffs showed, that there weren’t 115 FPS officers in Portland. In reality, there had been 115 total deployments, with some people counted multiple times; there were only, in sum, 86 FPS officers sent there. And of those, only 65 were “inspectors” who perform patrol and law-enforcement duties. That represents just 13 percent of the agency’s total inspectors, not 25 percent—which means that the government essentially doubled the number to make it look as if the agency were hamstrung.
Then, just as misleadingly, the Justice Department strongly suggested in its filings that all of those officers had been deployed to Portland for four months, forcing FPS to redirect a huge chunk of its workforce for extended duty in Oregon. It turns out that that was not true at all, as the plaintiffs wrote: Only a fraction of inspectors were ever in Portland at any given time—at most 31, and as few as 20 during some weeks. Not 115, but 20 to 31. So the government quadrupled the true number of FPS officers who were sent to the city to manage the protests. And the figure that the government put forth was at the core of the 9th Circuit decision in favor of Trump.
This is really important, because in some sense it might sound as if we’re just nitpicking numbers. But this goes to the very heart of why we have judicial oversight at all. Look at what happens when you just take the government at its word! And this is why we have judges fighting one another about the role of the judiciary. In the circuit court’s decision, the dissenter, Judge Susan Graber, kept saying: “They’re really not telling the truth!” And the majority wouldn’t even question the DOJ’s numbers.
Graber sounded mighty suspicious of these figures in her dissent. She wrote that the government seemed to be concealing key information from the court and shrouding data in this studiously ambiguous language. And she pointed this out because, again, the majority based its decision on that obviously suspect data. The majority wrote that the FPS deployments were “irregular and unsustainable” because “nearly a quarter of the agency’s officers with relevant training” were “stationed in Portland in late September.” That was the linchpin of the majority’s conclusion that Trump could not keep the peace with civilian law enforcement alone and needed to call in the Guard.
And it just wasn’t true! There was nothing “irregular” or “unsustainable” about the FPS presence in Portland. There were two dozen officers, give or take, over the span of four entire months of intermittent protests, which is not unusual at all. The notion that FPS was stretched so dangerously thin that the National Guard had to come to the rescue to protect Portland’s ICE facility was pure fantasy. And yet that was the fact at the core of the 9th Circuit’s ruling for the president.
I really do think that this makes the judges in the majority, Ryan Nelson and Bridget Bade—both Trump appointees—look astoundingly gullible and foolish. The thrust of their opinion is that the courts have to give immense deference to the president when he seeks to federalize the Guard. Judges shouldn’t question anything; they should just embrace whatever the commander in chief says because he’s the leader of this country and we owe him that respect. But it’s plain as day that this administration has not earned that deference. And so when the courts do defer to Trump’s judgment, they end up deferring to lies and looking really stupid.
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That is the stinky cherry on top of this case, because the Justice Department still won, right? It got two of the three judges to agree to math that doesn’t math. And then, this past week, it had to come forward and say: Oops, one little correction.
To be clear, DOJ lawyers did this only after the plaintiffs caught them red-handed and told the court they were lying. Only then did the department admit that it was wrong, without admitting to any intent to mislead the court. Its lawyers had told the court that it was “undisputed” that “nearly a quarter of the agency’s entire FPS capacity had to be redirected over a relatively short period” to Portland. But in fact, that wasn’t just disputed—it was wrong! The DOJ expressed “regret” about “any unintended ambiguity about the number of deployed FPS officers at any given time,” which is one way of saying that it inflated 20 officers to 115. But, like Graber, I seriously question whether that ambiguity was really unintended, given how carefully and deceptively worded the filings were in retrospect.
I also doubt that the DOJ would have confessed this error if the plaintiffs hadn’t called it out. I think that the sequence of events here makes it pretty clear that the department would have just sat on this information, this correction, if the plaintiffs hadn’t noticed the mistake. Cantu, the regional director who filed the phony declaration, had to submit an entirely new declaration correcting the mistakes in his previous one. That is incredibly embarrassing for the government, and for judges who kept citing Cantu’s declaration over and over again. They said it was the undisputed truth; now we learn it’s not the truth at all.
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One day after the government said “whoopsie,” the full 9th Circuit wiped away the entire panel decision. Is that a signal?
I’m unsurprised that the full court did so, given that a majority of the judges are Democratic appointees. I don’t know if the government’s grudging confession of error played a role in the full court’s decision. But I think it certainly cemented the impression that the Trump administration does not have clean hands here and can’t really be trusted to tell the truth. Either way, the case will be reheard by 11 judges. And we’ll find out soon enough whether that group is a little bit more skeptical of the government’s assertions than the Trump loyalists on the panel majority. It will be interesting to see whether even one or two Republican appointees decide that they’re not going to defer to a bunch of serial liars. But at a minimum, next time around, the court will have the benefit of more truthful information and a hugely humiliating confession of error from the government.
