“I don’t know.”
That’s the answer that Justice Department attorneys, when asked basic questions by judges about President Donald Trump’s dramatic overhaul of the federal government, have been forced to offer in multiple court hearings as the legal challenges move at lightning speed.
The government attorneys tasked with defending Trump’s agenda over the past few weeks have been put in an extremely challenging position, often showing up to court proceedings not fully prepared or with incorrect information, amid the chaos emanating from the White House and in agencies across the executive branch.
One judge scolded them for failing to flesh out legal arguments in writing. Court hearings have dragged on for hours because the lawyers are unable to get their clients – the agency “decision makers” – on the phone to weigh in on proposals and questions. And in a handful of cases, the department has been forced to correct statements made by its attorneys to the court after agencies gave them the wrong details.
One government attorney was even chastised by a judge for showing up to a hearing, scheduled with just over two hours’ notice, without a tie.
Courts have issued a cascade of rulings in recent days pausing various Trump agenda items, such as efforts by the Department of Government Efficiency to access sensitive government data systems, attempts to unilaterally freeze billions of dollars in federal funding, and moves to defund transgender healthcare.
“Everyone is being stressed,” Matthew Lawrence – a former attorney in the DOJ division that usually handles lawsuits challenging executive branch policies – told CNN, pointing to the “sweeping” and at times “incompletely baked” Trump orders that are driving the legal challenges.
“Everybody has to deal with uncertainty,” Lawrence added. “It’s a challenge across the system.”
A White House that’s distrustful of long-time federal employees, coupled with dozens of far-reaching executive orders and policy shifts, has sent agencies into turmoil, which in turn has hamstrung the Justice Department’s ability to defend the administration. Trump’s upending of how the federal government operates has forced judges to act quickly to issue temporary rulings just to maintain the pre-Trump status quo or to push the parties in agreements that would buy a few more days of continued briefing.
Only in recent days and in the coming weeks are the cases moving toward judges looking closer at claims and meatier arguments.
At an early February hearing concerning Treasury Department data, Judge Colleen Kollar-Kotelly decried the “paucity” of official public information about the DOGE as she tried – with limited success – to understand basic facts about the entity’s mission.
“I’m not trying to pin you to the wall,” she told the DOJ attorney. “I’m just trying to figure this out.”
After the hearing, the Justice Department corrected several factual details it told the judge about how the agency, with workers from the Elon Musk-led initiative, was functioning.
One correction was about the level of access to a Treasury payment system that had been granted to a young DOGE representative. The administration initially told judges the capability was for “read-only” access, when in fact it briefly allowed the representative to interact with the system.
Mistakes are inevitable, and particularly so in fast-moving legal challenges. The administration’s opponents have been victims of confusion wrought by the relentless litigative pace as well. A lawyer for federal employees suing over conduct at the Office of Personal Management, for instance, failed to show up at an in-person hearing earlier this month because the attorney thought it was being held virtually.
The schedule has been a “strain,” a DOJ attorney said in Friday hearing, as he struggled with questions from the judge about DOGE’s presence at the Department of Education. “All of us would have loved more information,” the lawyer said.
Multiple corrections to the record
The White House aims to install Trump loyalists up and down the Civil Division, the part of the DOJ in charge of defending his policies in court, as Trump’s inner circle is wary of the career attorneys who handle the government’s legal work – many of them for decades, across administrations of both parties.
But even Trump’s hand-picked acting Civil Division chief has floundered in court. In a hearing last week examining the dismantling of the US Agency for International Development, the lawyer, Brett Shumate, was confronted with frustrations from the judge – a Trump-appointee himself – that he was being forced to decide what to do about plans to lay off thousands of agency employees without written briefs from the government.
“The problem is, I have something like eight hours, no brief from the government, and at least the hypothetical possibility that 2,200 people will be placed on administrative leave in 12 hours,” Judge Carl Nichols told Shumate.
“I don’t have a brief,” Nichols said at another point, pushing back at an assertion from the lawyer. “I don’t have a single case from you that stands for that proposition.”
Days later, the department filed corrections to details Shumate presented at the hearing. The lawyers wrote those facts were provided “in good faith” to the court, based on the details DOJ was given, “immediately prior to the hearing.” The agency gave the lawyers “additional information” later.
The Justice Department told the judge that the number of USAID workers who had been placed on leave at USAID was actually four times greater than they initially said in court, and the filings also said that Shumate’s characterizations of the types of contracts being frozen was incorrect as well.
‘I still don’t have details to give you’
DOGE’s efforts to seize the keys to closely guarded government data systems – which government employees allege should be shielded from them under privacy laws and regulations that limit who can access such records – have been a particular source of uncertainty and confusion in court.
In several hearings, the government’s lawyers have not been able to offer the type of factual context that would help them to defend the officials’ actions related to DOGE access related to the Treasury Department’s payment systems, student records at the Department of Education and Department of Labor data.
When they have, the lawyers have heavily hedged and responded to point-blank questions from judges with phrases like “that’s our understanding” and “to our knowledge.”
At a Monday hearing in the Department of Education case, the DOJ attorney said that the department was still “gathering information” about the access the DOGE affiliates had to the records and the “scope of their duties.” But the department hadn’t gotten much farther by the time the parties reconvened before the judge a day later. Noting that “there’s not a lot of clarity about what the DOGE employees are doing,” Judge Randy Moss asked again why those officials were interested in the department’s systems.
“I still don’t have details to give you,” the DOJ attorney said.
When an administration’s policy is challenged in court, civil division attorneys typically work closely with the lawyers at the agency to prepare for a defense.
“In that regular order, some of the vetting process happened before action came out, within the agency,” Lawrence, now a professor at Emory Law, said. “Once the lawsuit is filed, you have the DOJ working with the agency to get the agency’s’ evidence.”
Part of the DOJ process – when things are working as they should – is for department lawyers to talk through with the agency all the possible questions that could come up at a hearing, according to Doug Letter, a former DOJ attorney who served 40 years at the department, including in top roles in the Civil Division.
“Together, you come up with a response,” Letter, who also served as US House general counsel for the Democrat-led Congress in proceedings opposing the first Trump administration, recalled to CNN. “I always said to agency clients, ‘I’ve got to say something, come up with a group of English words that I can say, because I have got to say something.’”
Many of the cases are unfolding in a DC federal trial court that is deeply aware of the complexities involved in litigation around executive branch actions. Some of the judges, like Kollar-Kotelly, have decades of experience overseeing such lawsuits. Several judges worked in the Justice Department themselves.
Nichols is a former head of the Federal Programs branch, the part of the Civil Division that often defends agency policies that are challenged in court.
Unable to reach ‘decision-makers’
DOJ attorneys’ inability to get the sign-off from the key officials at their client agencies have hampered the efforts by judges to navigate the parties towards short-term negotiations that would buy more time for briefing.
“I just don’t have my client in the room with me. I need to run this all by them,” DOJ attorney Brad Humphreys told Kollar-Kotelly as she tried to find such a way forward, with the attorney pointing to “layers of review” that would be needed to sign off any on agreement.
She ultimately gave them more time: “Hopefully, Mr. Humphreys, you’ll be able to get ahold of somebody.”
DOJ attorneys faced similar issues reaching “decision makers” during an all-day hearing, in the lawsuits brought by FBI employees over Justice Department demands for a list that would identify agents who worked on the January 6 Capitol riot investigation.
“We are not able to reach decision makers to give us any authorization,” DOJ attorney Jeremy Simon said at first.
The proceedings were stopped and started multiple times over the course of the day as the attorneys worked the phones to get the information that they needed to finally work out language to propose for a court order.
Part of the back and forth included a discussion about whether the list had been protected so far. At one point, before he received further clarity from his clients, Simon said he had that he didn’t “have reason to believe” that any disclosure occurred.
Judge Jia Cobb jumped in and told the attorney, “’I don’t know’ is a full and complete answer.”
After a brief pause, Simon responded: “I don’t know.”
CNN’s Hannah Rabinowitz, Devan Cole and Paula Reid contributed to this report.
