When Judges no longer Trust (defer to) the Government
What will it take to restore trust in the Justice Department?
The presumption of regularity: Where it has been proved that an “official act” has been done, it will be presumed, until the contrary is proved, that the said act “complied with any necessary formalities” and that the person who did it was “duly appointed”. (wikipedia)
Summary:
1. Judicial Deference and Broken Trust with the DOJ
The Presumption of Regularity: The hosts discuss how judges have historically operated under a “presumption of regularity”—the baseline assumption that the Department of Justice (DOJ) and government attorneys act strictly by the book as officers of the court whose sole goal is to do justice.
Loss of Trust: This systemic trust has been broken due to repeated government oversteps. Specific examples are cited, including a judge in the Broadview case who explicitly stated she could no longer trust what the government said, and a decision in Abraik Garcia where a judge ruled that the government had vindictively prosecuted an individual.
Long-Term Institutional Damage: Mary McCord notes that as a former longtime DOJ attorney, it is painful to witness the “immeasurable” damage being done to the institution. She emphasizes that a future administration dedicated to the rule of law will face a massive hurdle in rebuilding credibility with federal judges.
2. The Challenge of Rebuilding the DOJ
Hiring Practices and Loyalty Tests: The conversation touches on how the current administration has fundamentally altered the department by seeking to terminate career employees who disagree, and by hiring individuals based on a “litmus test of loyalty” (such as asking job applicants who won the 2020 election).
The Dilemma of Restructuring: Rebuilding the department poses a difficult challenge. While completely “cleaning house” runs the risk of looking like a retaliatory political cycle and strips the DOJ of vital institutional memory, leaving politically loyalist hires in place makes digging out of the trust deficit much harder. The hosts consider alternatives like probation periods or forcing personnel to reapply for their jobs.
Prosecutorial Integrity: McCord reflects on her early days as a prosecutor, emphasizing that a DOJ attorney’s most valuable asset is absolute candor—presenting bad facts and weak points openly to the judge so that the department’s representations can always be taken at face value.
3. The Indictment of Raul Castro
The Historical Context: The DOJ recently issued a relatively bare-bones indictment against 94-year-old Raul Castro, the former defense minister, president, and brother of Fidel Castro. The indictment stems from a 1996 incident involving the shooting down of aircraft operated by the humanitarian group Brothers to the Rescue (Hermanos al Rescate), which was assisting Cuban migrants.
Geopolitical Pressure vs. Law: Because the events took place three decades ago, the hosts question the unusual timing. They debate whether a sudden break in decades-old evidence occurred (similar to the Lockerbie bombing case updates), or if the criminal justice tool is being improperly used as a geopolitical lever to apply pressure to the current Cuban regime.
The “Dunro Doctrine”: The hosts link the indictment to broader shifts in foreign policy where the administration appears to be abdicating its traditional role as a global superpower, focusing instead on asserting regional hegemony over countries like Venezuela and Cuba (coined by the president as the “Dunro Doctrine,” a play on the Monroe Doctrine).
4. Concluding Remarks
The host notes that the overarching theme of the episode is that every discussed policy or legal maneuver “feels illegal,” prompting the show’s title, The Illegal News.
The episode concludes with lighthearted banter regarding the shift from wearing “soft pants” (joggers) on Zoom during the 2020 pandemic to the unfortunate post-pandemic return of “hard pants” (jeans) due to leaving the house and resuming in-person life.
Transcript
35:10
I mean, I don’t know how many times I’ve had versions of this conversations with our rotating cast of lawyers about the judges because this is one thing I have really learned doing this show is the difference that the government gets from judges or the judges basically says like I trust that the government is telling me the truth and that like increasingly the judges can no longer trust the government to be telling the truth.
That’s 100% and you know um there’s different cataloges of this on just security. They’ve been cataloging every time a judge is like that presumption of regularity, which is what we call it. We as judges, we’re going to presume that DOJ is doing things by the book and frankly that all the government is doing things by the book. That’s out the window because you violated it too many times. This idea and she specifically, this judge in the Broadview case specifically said, I trusted what you would say. I treat every attorney who appears before me as an officer of the court, but I put even more reliance on the Department of Justice attorneys. your sole goal is to do justice, that trust has been broken. And we’re seeing this, like you said, over and over and over again. And again, the the judge’s decision in a break Garcia was also saying, I can’t trust the government. You vindictively prosecuted this person. You know, as a former longtime multi-dead DOJ attorney, it pains me because the damage to the Department of Justice is just at this point immeasurable. And at some point in the future, if we get to that point where we have a rule of law based administration, they’re going to have to rebuild that trust. And it may not be with some of the people who are there right now.
Actually, just a quick point of privilege on this one cuz we debate this uh at the bull work a lot around sort of when you watch all of this stuff getting torn down. I mean, and this goes across the board. It’s like, will other countries ever trust us again? You know, can we trust our legal system? All of this stuff. What does it look like to rebuild the trust in DOJ? Is it just like you got to get everyone out and hire completely new people? Is that what you do?
That is such an important and hard question to my mind because I I do think there is a danger. I mean, this is what essentially Trump has done right through his DOJ is let’s just fire anyone who disagrees with us. And that looks really awful. Well, I mean, the vast majority of attorneys at DOJ are career, not political attorneys and have worked under Republican administrations and Democratic administrations, and they’ve always seen their oath appropriately to the Constitution, not to any person who’s in office, and they’ve followed the facts and the law where it leads. And, you know, I was years and years without ever knowing anyone’s politics in my office because we didn’t talk about that. We worked on our cases. you know, the thought of going in and kind of cleaning house feels like, oh, we’re just like now in a cycle of of of that kind of thing. And DOJ needs to have career people who understand the institution, who have good memory of like how things have been handled. But on the other hand, there are clearly people who have been hired purely based on a litmus test of loyalty to Donald Trump and potentially even ask questions like who won the 2020 election. I mean, there certainly has been reporting that those questions have been asked. And so, how does a new Department of Justice determine sort of who to keep and who not to keep? And do you give everybody the benefit of the doubt to start with and then but you say, you know, maybe people are going to be on a probationary time and we’re going to, you know, wait and see or do you make everyone reapply for their jobs? I mean, there’s lots of possibilities there. I will say though, I worry about, you know, continuing what will then be portrayed as some sort of cycle of retribution. Um, and so I think we have to think long and carefully about it. But if there aren’t some changes, I think it’ll be a much harder to dig out of this hole that DOJ is in in terms of having lost the trust of the judges. as a prosecutor when I went into court and this was from day one Sarah and this is because my anecdote my view was look the most important thing I have in front of the judges who I’m going to appear in front of over and over and over again is that they trust my integrity and my judgment and they know I will never ever ever lie to them, stretch the truth to them, be anything less than perfectly candid. That means I tell them the good arguments I have. I tell them the bad facts and the bad things that hurt the government because I want when I walk in the courtroom, the judge to be like, “That’s Mary McCord. I I feel good about what the government’s, you know, doing and saying and representing.” I mean, that is what you have as a DOJ attorney. And when that is lost, um it’s just, you know, it’s a it’s a big big deal.
Well, there’ll be years for us to talk about this. Uh, and I want to talk about it more because I I’m I am increasingly obsessed with like what the right things are to think about. But first, first, uh, we’re going to need new people in power to even start to to to get there. Um, all right. The last thing I want to talk about before we get out of here, I don’t know very much about this at all. It’s something uh, this Castro indictment. It is something that I have seen in the news. I understand just a little bit about, but this is your like core. This is what you know, right? This is national security law. And so the DOJ has indicted Raul Castro, the Cuban political leader, former president, uh, and brother of Fidel Castro. And I don’t, this is all important because like maybe we’re gonna invade Cuba. Uh, it’s starting to feel like that could happen. Can you just give me the lay of the land on why we’re suddenly indicting Rel Castro?
Well, I cannot give you the lay of the land on why we’re suddenly indicting Raul Castro because this is, of course, for something that happened back in 1996. Now, I had my first child in 1996, and he will be turning 30 years old uh this year. Now, I got my driver’s license that year.
There you go. Shows how much older I am than you, too.
So, the now I will say one of the things the Department of Justice says is look, we our memories are long and if we have the ability to bring to somebody someone to justice who deserves to be brought to justice, we will do it no matter how long it takes. We’ve certainly done that in terrorism related cases. And I and I’ll say this is not charges of terrorism case. Um uh and so it’s not so much that 30 years have passed, but the timing is kind of unusual, right? Did something new happened that just broke open the evidence that allowed us to bring this indictment or is this um you know one that maybe had been passed on before by previous DOJs but now is thought as well maybe this can be a tool to put pressure on the Castro you know regime. Now again, of course, Raul Castro is not the president of of Cuba anymore and hasn’t been since 2018, but by all reporting, and I am not a Cuba expert. By all reporting, he still has an incredible influence there. Um, and the president, you know, has less. Um and so you know it does make you wonder is the timing of this really about pressure geopolitics and things like that or is it really about oh finally we have the evidence to bring um this person to justice for example just to talk about sort of like the long memory. You remember the Lockerby shooting pan pan the shooting down over Scotland um long long long time ago. work, work, work, work, work to try to develop evidence to hold someone accountable. And for decades, it just took, you know, you just couldn’t get there. And even when I was still at the Department in National Security, we were finally getting access to some new evidence. That case is now on track to actually, you know, be tried. So, it does happen that these things finally things break open. This is a pretty short indictment. Um, and it’s really about shooting down uh planes that were flown by uh people associated with brothers to the rec rescue, manos als um who were really trying to assist migrants who were leaving Cuba by flying planes and helping direct them and things like that. And it was a it was a they were shot down back again in 1996. And really what I see when I read the indictment is sort of like because Raul Castro was the defense minister and would have been part of the decision-making. Therefore, you know, Argo, he’s responsible for this. So, it’s unclear to me what is sort of like the evidence that really, you know, seals it. That doesn’t have to be an indictment. Indictment can be relatively bare bones, but it does make you to the timing point wonder what’s new here. And you know whether this is leading up to a Maduro type capture. I mean Raul Castro is 94 years old. Um that seems not like this government wouldn’t do it. But I wonder if it’s another a way to bring pressure in other forms as opposed to an invasion. But what do I know about that?
Yeah. And and maybe I shouldn’t even use the term invasion. My guess is because this is a a bigger thing and again foreign policy much like basically uh qualitative research and domestic policy are my areas of expertise and not uh international but based on what’s clearly shaping up is that we seem to be abdicating our role as a superpower and instead looking for kind of regional hedgeimonyy over places like Venezuela and Cuba. It does feel like we’ve decided to just exert control over this part of the globe and that that seems to be what’s happening in our foreign policy.
I think that’s consistent with things that the president has said, right? He wants his own now what’s he call it? The Dunro doctrine, right? A play on words of the Monroe Doctrine.
Dunro doctrine. Yeah.
Right. Where he thinks, you know, the western heaven he hemisphere should be ours. But using criminal tools for that, like you know, that’s not what they were actually made for.
Uh well, as the through line for this entire episode, um every single piece of this feels illegal. Um which is why this show is called the illegal news. Mary, thank you so much for doing this. I got to tell you, we blew through that because you are just like on it. No deviations like Andrew. No pleading for clothes from sponsors. just like banged out all the all the legal uh stuff we could we could ask for. And I’m not going to call you the superior co-host of Main Justice, but you are an excellent co-host of Main Justice and I really appreciate you coming on the show today. Hope you’ll do it again with me soon.
I will. I’m thrilled to be on the show. It’s such a great program and I’m such a huge admirer of you, Sarah. And actually, I will tell one story. My favorite story about you is the first time I met you back in like 2020 on some Zoom where all kinds of us who were worried about the election were on this Zoom and we’re all in these little Hollywood squares and we were talking about, you know, the the the sort of like things that came from co and I think I said something about um it’s nice to be able to wear jeans instead of a suit every day and you’re like jeans those are hard pants. I don’t wear hard pants and I’ve never forgotten that hard pants. Nobody wears hard pants when all you’re going to see is the top, you know, head of people on the Zoom. I have you to thank for no more hard pants.
That is funny. That is true that during the pandemic, I only wore like joggers and that every time I put on jeans, I was like, why would anybody do this to themselves? This is horrible. But now I’m back in hard pants.
Yes. Sucks, huh? But oh well.
Oh, yeah. Uh, but you know what? I do like being able to leave my house. So, you know, tradeoffs in life. Tradeoffs. All right, Mary. Thank you so much, guys. We’ll be back next week with more illegal news. Uh, in the meantime, don’t forget to rate, review us, and subscribe to All the Bull Work Things. See you.