Trump-appointed judge expresses 'skepticism' about DOJ case against Maryland judges over immigration order

By Nate Raymond and Andrew Goudsward

Aug 13 (Reuters) - A federal judge on Wednesday said he was skeptical of the U.S. Department of Justice pursuing an unusual lawsuit against every federal judge in Maryland to challenge a court order that blocked President Donald Trump's administration from immediately deporting migrants contesting their removal.

U.S. District Judge Thomas Cullen, a Trump appointee from Roanoke, Virginia overseeing the case, during a hearing in Baltimore questioned why the Justice Department was entitled to sue a co-equal branch of government in order to challenge a court order it opposes.

"I think you probably picked up on the fact that I have some skepticism," Cullen told a Justice Department lawyer.

The DOJ filed the case after the Maryland court in May adopted a standing order that automatically blocks for two business days the deportation of migrants in the state who file new habeas lawsuits challenging their detention.

The order was issued as the Republican president's administration moved to fulfill Trump's pledge to conduct mass deportations and cited a "recent influx of habeas petitions concerning alien detainees purportedly subject to improper and imminent removal from the United States." A habeas petition is a legal action challenging the legality of a person's detention.

Rather than challenge the policy by pursuing an appeal in one such lawsuit, the Justice Department in June sued the 15 judges and the U.S. District Court for the District of Maryland, arguing it was a lawful policy.

The DOJ has called the order an "egregious example of judicial overreach," following a series of injunctions in lawsuits that have prevented the Trump administration from fully executing his policies.

"Every single time one of these orders gets entered, our sovereign interests in enforcing duly-enacted immigration law are being inhibited," Elizabeth Hedges, a Justice Department lawyer, said at Wednesday's hearing.

But Cullen said that by suing the judges, the Justice Department was "taking it up about six notches" compared to prior instances when judicial policies have been challenged by prosecutors. He suggested the simpler path would have been for the administration to contest the order at the 4th U.S. Circuit Court of Appeals, and, if necessary, the U.S. Supreme Court.

"It would have been more expeditious than, you know, the two months we've spent on this," Cullen said.

The Justice Department often represents the judiciary in litigation, but the unusual posture of the case forced the judges to instead retain Paul Clement, a prominent conservative lawyer at Clement & Murphy.

Clement said that while he was "honored and happy" to represent the judges, being placed in that position was "no ordinary matter," nor was Cullen having to travel from Roanoke to hear the case. He said the disruptions demonstrated why the Justice Department shouldn't be allowed to pursue what he called an unprecedented case when more traditional options for challenging the order were available.

"All of the alternatives that are available avoid that kind of nightmare scenario," Clement said. "That nightmare scenario is part of the reason that we don’t have a tradition of suits that are executive versus judiciary."

The judge said he would issue a ruling "as quickly as I can by Labor Day," while noting that he would not have the final word on the matter.

The case is United States v. Russell, U.S. District Court for the District of Maryland, No. 25-cv-02029.

For the United States: Elizabeth Hedges of the U.S. Department of Justice

For the Maryland judges: Paul Clement of Clement & Murphy

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