The gambit was a tantrum, not a legal counter, and it adds to the damage the Justice Department has done to its credibility with the courts.

We shouldn’t let pass one other legal development from last week: A Trump-appointed judge threw out the Trump Justice Department’s frivolous lawsuit against the U.S. district court in Maryland — i.e., against the chief judge, all active and senior judges in the district, the court clerk, and even the district court itself.

The lawsuit was a stunt. There was no case or controversy, the constitutional requirement for standing to sue. This was the executive branch suing a peer branch of the government (a component of the judiciary) over an action for which — as the DOJ obviously knew — the lead defendant, Chief Judge George L. Russell III (an Obama appointee), had complete immunity, as did his co-defendants.

The suit was gratuitously disruptive. Because the Trump DOJ — acting as counsel for the administration’s plaintiff, the Department of Homeland Security (DHS) — named all the judges of the court (and the court itself) as parties, the judges and court had to be recused on conflict-of-interest grounds. The district court in Maryland is part of the Fourth Circuit, so the Chief Circuit Judge Albert Diaz (an Obama appointee) had to appoint a judge from outside the district of Maryland to preside.

Thus was Judge Thomas T. Cullen, the Trump appointee to the district court for the Western District of Virginia, brought in to handle the matter. Prior to becoming a judge, Cullen was the district’s U.S. attorney — appointed to that post as well by President Trump. Last Tuesday, Judge Cullen issued his 39-page memorandum opinion dismissing the lawsuit.

This is not to say that the action by Chief Judge Russell, an Obama appointee, was appropriate. Just that the Trump DOJ’s response was a tantrum, not a legal counter.

Cullen and his fellow district judges were concerned, as have been Supreme Court justices and other judges across the country, with the Trump administration’s propensity to try to deport aliens — those whom the administration claims are illegally in the country and subject to removal — before those aliens have been given the due process mandated by Congress’s immigration laws. (See, e.g., my earlier post today about the administration’s attempt to deport alien minors over this holiday weekend.) As a result, in May, Russell issued standing orders — not in any particular case but rather of general application — which directed the DHS to refrain for two business days from removing from the country, or otherwise altering the legal status of, any detainee who had filed a habeas corpus petition.

Russell’s order was not unreasonable, even if it was hardly incontestable. As Judge Cullen pointed out, when an alien deemed removable by the Justice Department’s immigration court and Bureau of Immigration Appeals seeks review in the Fourth Circuit, that court’s standing order calls for a stay of removal for 14 days “to allow time for responsive filings and to preserve the court’s ability to make a considered decision on the motion.” Comparatively, as Cullen observed, Russell’s call for a two-day delay was not merely “modest” but also appropriate in light of the fact that (as I’ve pointed out several times) Congress’s immigration statutes have limited the authority of the district courts to review immigration matters.

That said, Russell’s directive may well have been beyond his authority. It was not issued in any particular case; it was arguably not in compliance with the procedures for promulgating local rules of the district court; it did not require aliens to satisfy the prerequisites for an emergency stay; and in most instances the district courts should not be acting on removal cases at all.

Still, as we’ve seen over the past six months, precisely because the Trump administration has taken a number of actions that were illegal, or at least edgy, there have been grounds for district courts to entertain habeas suits. There is little doubt, moreover, that if an alien filed a concrete habeas petition in Maryland district court, a judge would have authority to issue a brief administrative stay to sufficiently familiarize himself or herself with the relevant facts and law, in order to assess whether judicial action was appropriate.

Practically speaking, then, Russell was simply directing what judges catching these cases were likely to do anyway. And if he was out over his skis, the administration was poorly positioned to complain since it has repeatedly been way out over its own.

Here’s the point, though: Regardless of whether Russell was wrong, the Trump DOJ had proper ways to object and get him reversed.

Most obviously, it could have waited for an alien to file a habeas case and, at that point, contested the ordering of a two-day stay — and then appealed if the judge in the case overruled the government’s objection (however unlikely of success given that appeals court generally will not consider appeals of brief administrative stays). Or better, as Cullen explained, the DOJ could have invoked congressional statutes (Sections 2071(c) and 333(d)(4) of Title 28, U.S. Code) to petition the Judicial Council of the Fourth Circuit to rescind or modify Chief Judge Russell’s directives.

Instead, it sued the court, inviting what Cullen described as “novel and potentially calamitous litigation”: Not only was the judicial branch forced to deal with the recusal of the entire court, putting Cullen in the position potentially of holding his peers in contempt if they arguably violated his orders; the principal actors in the case had immunity for their official acts, and information demands in the litigation would run headlong into claims of privilege. This, Cullen said, would “invariably compound this constitutional standoff into epic proportions.”

That is, the administration’s suit was clearly a non-justiciable political dispute between two branches of government. Patently, there was no way it could proceed. That’s why it shouldn’t have been filed in the first place.

And it was not an aberration. Coming from a Trump-appointee, Judge Cullen’s assessment was striking:

Indeed, over the past several months, principal officers of the Executive (and their spokespersons) have described federal district judges across the country as “left-wing,” “liberal,” “activists,” “radical,” “politically minded,” “rogue,” “unhinged,” “outrageous, overzealous, [and] unconstitutional,” “[c]rooked,” and worse. Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.

It must be noted that a big reason why the Justice Department wins the vast majority of cases it brings, and in which it represents a party, is that the federal courts know it habitually acts responsibly — avoiding reckless maneuvers, let alone intentional lawlessness. Of course it makes mistakes, it is on occasion badly wrong about this or that issue, and it loses sometimes because of errant judgment. But on the whole, over the decades, the courts have come to understand — and to appreciate — that the DOJ tries to get the law right and to steer judges away from error (even if doing so is not necessarily helpful to the DOJ’s case in a bottom-line sense).

The Trump Justice Department, like the Biden and Obama Justice Departments before it, is squandering that reputation. It is the president who will pay the price to the extent — the large, unappreciated extent — that his administration’s law enforcement agenda relies on the courts’ assumption that the government can be trusted to follow the law.