Judge is skeptical of Justice Department’s lawsuit against 15 federal judges as Trump tries to limit power of judiciary

By Devan Cole, Katelyn Polantz, CNN

Baltimore (CNN) — A federal judge was skeptical at a hearing Wednesday of the Justice Department’s effort to sue all of Maryland’s federal court judges in a case testing the Trump administration’s effort to limit the power of the judiciary.

The case raises major questions about ongoing power struggles between the Trump administration and the federal courts, specifically as judges have tried to curtail due process violations in President Donald Trump’s aggressive approach to immigration.

The Maryland court has become one of the central playing fields for immigration clashes between the administration and judges, after lawsuits, including one from Kilmar Abrego-Garcia, challenged how the administration was removing detainees with little to no due process.

“I don’t have a very good poker face,” US District Judge Thomas Cullen said during a major hearing in the case, where the Trump administration is challenging the ability of all 15 judges in Maryland’s federal district court from following a court rule that temporarily bars the administration from carrying out fast-moving deportations of immigrants. “I have some skepticism.”

Cullen, a 2020 Trump appointee to the federal bench in Virginia who was also a US Attorney in the first Trump administration, was brought in to oversee the immigration case at the federal court in Baltimore since all of Maryland’s judges are recused from the matter.

The judge spent nearly two hours on Wednesday criticizing the administration’s decision to file the lawsuit and questioning whether it could lead to other executive branch litigation against federal benches all the way up to the Supreme Court. He said he would rule by Labor Day.

“You have to concede that if they can do this at the district court level, they could do this at the Circuit or potentially the Supreme Court,” Cullen said at one point, appearing sympathetic to the judges’ arguments.

The judges hired well-known conservative lawyer and George W. Bush-era Solicitor General Paul Clement to defend them in the case and argue the case should be thrown out.

“The logic of the executive branch suit here would extend fully in a suit against the 4th Circuit,” Clement said, referring to the Richmond-based federal appeals court that oversees cases arising from several mid-Atlantic states, including Maryland.

In arguing that the case should be thrown out, said that his clients enjoy “judicial immunity” from lawsuits like this one and that the administration had no cause of action – or claim – through which they could seek to block the Maryland court’s rule.

“There really is no precursor for this suit,” Clement said. “There’s just nothing like this kind of injunction against the judicial branch.”

The Justice Department sued all federal judges on the lower-level District Court of Maryland in late June, after the court’s chief judge put in place a rule that would automatically and temporarily block the Trump administration from removing an immigration detainee from the US if the detainee had gone to court to challenge their removal.

The rule was meant to keep the status quo, so a court could intervene within two business days before a detainee would be moved away. The order, from Chief Judge George Russell, was an unusual approach to detainees’ cases, though not unheard of in court, coming after a high-profile dispute in the Maryland federal court where the Trump administration mistakenly sent the Abrego Garcia, to a Salvadoran prison without due process and then said it couldn’t bring him back to the US.

The Justice Department’s approach to sue the judges, however, is equally unusual, and judges nationwide have told CNN they consider it to be an extreme approach.

Cullen acknowledged that reality on Wednesday after a Justice Department attorney tried to point to other suits brought in the past by executive branch officials against members of the federal judiciary. Those lawsuits include one filed in the 1990s by then-US Attorney Sheldon Whitehouse against Rhode Island’s federal court.

But those suits, Cullen said, were “considerably more modest” than the one brought by the Justice Department in June.

“This is taking it up about six notches, isn’t it?” he added.

The DOJ attorney, Elizabeth Hedges, also tried to tamp down concerns that a raft of litigation could result from a favorable ruling.

“These sorts of suits have been brought in the past and we have not seen a proliferation of litigation,” she said. “This is not opening the floodgates.”

“We can take your word on that – this is a one-off?” Cullen shot back.

None of the 15 Maryland judges who are named defendants in the lawsuit were present in the courtroom for Wednesday’s hearing, a spokesman for the court told CNN.

Eleven former federal judges from various circuits, including some appointed by Republican presidents, warned in a friend-of-the-court brief in the case that if the Trump administration is allowed to carry its approach through “to its logical conclusion,” it would “run roughshod over any effort by the judiciary to preserve its jurisdiction that frustrates the Executive’s prerogatives. … That result would be devastating to the efficacy of the Nation’s courts.”

Apart from the implications of the lawsuit, Cullen indicated he was concerned by the fact that the Justice Department decided to mount a wholesale challenge to the Maryland court instead of taking issue with court orders around detainee removals on a case-by-case basis.

“Why not file an interlocutory appeal as applied in any one of these (immigration) cases” and take it up to the Supreme Court when necessary, he said. The judge pointed to the fact the high court has acted quickly on cases appealed to it on its emergency docket.

Such an approach, he said, “would be more expeditious than the two months we have spent on this.”

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