Judges want to peek under the hood at the Justice Department, setting up another showdown with Trump

By Katelyn Polantz, CNN

(CNN) — The Justice Department is facing several court orders that land it in a position it often seeks to avoid: Revealing the private statements of its top political leaders.

Judges’ attempts to confidentially review executive branch records and hold hearings where Justice Department attorneys could take the stand are bearing down in the coming days.

In one case, regarding the migrant Kilmar Abrego Garcia, the Justice Department is fighting to keep Deputy Attorney General Todd Blanche from having to testify about prosecutorial decision-making in a hearing next month.

And this week, federal Judge Cameron McGowan Currie will look closer at Eastern District of Virginia US Attorney Lindsey Halligan’s work with a grand jury before the recent indictment of Trump political opponents James Comey and Letitia James.

The examples in court reflect how trust has been lost by the Justice Department this year while President Donald Trump and his top allies and appointees have repeatedly attacked the courts and challenged even temporary orders with emergency appeals.

If officials are forced to testify and the Justice Department hands over internal communications, the proceedings may expose the Justice Department’s inner workings in a way that could have implications for multiple ongoing, high-profile and intensely challenged criminal cases.

“What a mess,” said CNN legal analyst Elliot Williams about the latest turns in the criminal cases.

“The government always plays with fire whenever it takes an aggressive action that might end up in court one day,” he added. “When that happens, they really do risk having secrets and strategy that they’d rather not have in plain view.”

An order from Currie on Tuesday also puts more scrutiny on Halligan’s handling of Comey’s indictment. The judge said she wanted to review more complete statements than the Justice Department already has provided from the grand jury proceedings in Comey’s case.

It is highly unusual for a US attorney to single-handedly secure indictments before a grand jury – which Halligan did against both Comey and James days after Trump appointed her to the top prosecutor job. But it’s also somewhat unusual for a federal judge to demand looking at internal records privately, called “in camera.” Typically, prosecutors can summarize their positions for courts without judges needing to double-check or dig further.

Currie is set to hear arguments from both defense teams and the Justice Department on November 13 about Halligan’s role in the cases.

The defense teams hope to have the criminal cases dismissed, arguing that Halligan doesn’t have the authority because the Eastern District of Virginia hasn’t had a Senate-confirmed US attorney for longer than the 120 days interim appointees are allowed, and that the former Trump personal attorney and White House staffer hadn’t come from another job within the Justice Department.

Currie said in a court order on Monday she “finds it necessary to determine the extent of the indictment signer’s involvement in the grand jury proceedings.” And in an atypical follow-up on Tuesday, Currie said the Justice Department, in initially providing records to the judge, didn’t include transcripts that captured remarks Halligan made before and after a witness testified to the grand jury in the Comey case.

The judge also wanted to see the transcript of an initial attempt to secure an indictment, where the grand jury rejected one charge against Comey. The ex-FBI director was ultimately charged with two counts: making a false statement and obstructing a congressional proceeding. He has pleaded not guilty.

Tension in Tennessee

In the criminal case against the mistakenly deported then criminally charged Abrego Garcia, federal Judge Waverly Crenshaw Jr. in Nashville ordered prosecutors to send their internal communications to him. Abrego Garcia’s attorneys contend he has been unfairly prosecuted for political reasons.

A hearing where the No. 2 leader of the Justice Department may have to testify is now scheduled for early December. The judge wants to privately review communications between Blanche’s office in Washington, DC, and the Tennessee-based federal prosecutors’ office, which charged Abrego Garcia.

The judge also told the Justice Department to send to the court under seal other records it might have related to the federal government’s decision to prosecute him rather than deport him this spring. He was returned to the US after being wrongfully deported to a Salvadoran prison and then was charged with human smuggling linked to a traffic stop years ago. He is fighting the charges.

The Justice Department submitted some documents under seal last week. But Crenshaw in recent days said they needed “more time to finish collecting and producing documents.”

Crenshaw said that the Justice Department said it had no documents “for entire categories of information requested by the court,” but then said “the Government certainly has additional responsive documents” on its decision to prosecute Abrego Garcia over deport.

“The Government shall continue to solicit responsive documents” and keep sending them to the judge, Crenshaw has ordered.

But the matter isn’t totally resolved. The judge’s efforts to weigh whether Abrego Garcia was unfairly prosecuted will continue in a larger standoff slated for next month in Crenshaw’s courtroom.

Abrego Garcia’s attorneys seek to question under oath Justice Department officials, including a former prosecutor on his criminal case in Tennessee who had resigned, and three attorneys from the Deputy Attorney General’s office, including Blanche himself.

Justice Department prosecutors on the case have said Blanche’s and his deputies’ testimony would be unnecessary, despite Blanche speaking on national TV about the decision to charge Abrego Garcia and return him to the US from El Salvador. They also argue official decision-making should be protected from being disclosed in court because of executive branch confidentiality.

“Given that undisputed evidence shows that there is no link between the Office of the Deputy Attorney General and the decision to prosecute, there is no basis for subpoenas seeking to compel testimony from high-ranking officials in that office, including the Deputy Attorney General himself,” prosecutors wrote to the court on Thursday.

Prosecutors in the case say, however, the former acting US Attorney in Nashville, Homeland Security investigators and a state trooper who stopped Abrego Garcia for speeding on the interstate highway in 2022 could testify.

The department has also indicated it has wanted to deport Abrego Garcia imminently, which could end the criminal proceedings, and Abrego Garcia’s attorneys are advocating to have his charges dismissed if Blanche won’t testify.

“The very officials whose testimony is required to meet that burden” to show in court the case should stay alive, Abrego Garcia’s attorneys wrote this week, “are resolutely unwilling to show up. For anyone interested in good government, that is profoundly troubling.”

The depth Crenshaw ultimately decides to probe into top Justice Department decision-making could factor into the Comey and James cases, too.

Both of those defendants are fighting their charges, and asking judges to dismiss their cases because they say Trump unfairly pushed for their indictments.

“Objective evidence,” Comey’s team wrote to the court, noting dozens of angry social media posts the president has made about Comey, “establishes that President Trump directed the prosecution of Mr. Comey in retaliation for Mr. Comey’s public criticisms and to punish Mr. Comey because of personal spite. Such a vindictive prosecution serves no legitimate government interest and contradicts fundamental constitutional values.”

The Justice Department this week argued that years of Trump commenting on social media that he wanted to see Comey indicted didn’t mean the Justice Department was unfairly targeting the former FBI Director with criminal charges now.

And on Tuesday afternoon, federal prosecutors also told the court it didn’t immediately plan to hand over documents to defense lawyers related to the decision to charge James with mortgage fraud.

Justice Department prosecutors say, according to the filing, that James shouldn’t have more access to their internal records unless there are further court proceedings.

CNN’s Devan Cole and Hannah Rabinowitz contributed to this report.

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