MARY LOUISE KELLY, HOST:
Most days this year, the Justice Department has been busy defending President Trump's executive actions in courtrooms all over the country. In many of those cases, the government's own lawyers have been struggling to answer questions and having to correct the record. NPR justice correspondent Carrie Johnson reports
CARRIE JOHNSON, BYLINE: A perfect storm has been brewing inside the Justice Department this year. Start with dozens of executive orders raining down on the White House from Day 1.
KELSI BROWN CORKRAN: There have been over a hundred and thirty lawsuits that have been filed in the past two months, and that would be an extraordinary amount of litigation for DOJ to defend even if it were fully staffed, which it is not. It is far from it.
JOHNSON: That's Kelsi Brown Corkran. She spent six years at the Justice Department and now teaches at Georgetown University Law Center. Corkran says the unit inside DOJ that defends the federal government has lost more than a third of its lawyers this year. Josh Blackman is a law professor at South Texas College of Law.
JOSH BLACKMAN: It's sort of well-known that when Trump came into office, there were a number of people at DOJ who decided to step down. And even those who perhaps didn't choose to step down, maybe were nudged out, as they might say. So I think they're dealing with fewer people willing to help with these cases.
JOHNSON: That tight squeeze is leading to some mistakes. Last month, there was a typo on the first page of an appeals court brief signed by the attorney general and other top officials. Ryan Goodman of NYU law school says he has a bigger concern - DOJ lawyers are unable or unwilling to answer questions from judges.
RYAN GOODMAN: The Justice Department is fast losing credibility before the courts.
JOHNSON: Goodman watches all these cases closely, starting with a challenge to Trump's order getting rid of birthright citizenship.
GOODMAN: The first one that had a hearing with a Reagan-appointed judge in Seattle, he actually said to the lawyers, where were the lawyers in the room when you did this (laughter)?
JOHNSON: That birthright citizenship order clashes with the 14th Amendment to the Constitution and a separate statute, and the judge wanted to know who signed off that the order was legal. The Justice Department office that usually does that review has been sidelined this year. Then, Goodman says, judges have had lots of questions about who's running DOGE, the team tied to Elon Musk that's been slashing federal agencies. One DOJ lawyer told a judge they didn't know.
GOODMAN: It's not just like a fact. It's not a small detail. It is a knowable fact. And to me, that either suggests bad faith on the part of the Department of Justice or - and I think more likely - that they're not in the loop.
JOHNSON: A spokesperson said vigorously defending President Trump's executive actions in federal court is a top priority for this Department of Justice. Josh Blackman says every day brings a fire drill of emergency litigation in the courts.
BLACKMAN: Usually there are these fairly intricate interagency communications where people from different departments will meet and discuss what's sort of going on.
JOHNSON: But that normal process seems not to be happening, partly because of so many executive orders and so many lawsuits. Blackman says it's not fair to blame DOJ lawyers for not having some of those details.
BLACKMAN: These are sort of novel times, and I think the government's lawyers are doing the best they can to deal with sort of this new paradigm that President Trump has brought in with his agenda, which is moving just very fast.
JOHNSON: But in other cases, the Trump administration seems to be making a choice not to share information. Take the lawsuit about dozens of alleged Venezuelan gang members sent to a notorious prison in El Salvador last month. Lawyers for DOJ said they didn't know when the planes took off or when Trump signed the order. When the judge grew upset, the administration invoked state secrets to avoid answering the question. Again, Kelsi Corkran.
CORKRAN: That's not attorneys who are unprepared. That's a strategic decision that the government has made not to divulge information.
JOHNSON: A decision she says will be tested by the courts. Carrie Johnson, NPR News, Washington.
(SOUNDBITE OF ALEX G SONG, "WALK") Transcript provided by NPR, Copyright NPR.
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