Holding DOJ to account has been ‘extremely frustrating’ for judges. A Rhode Island court is taking a fresh approach

By Devan Cole, CNN

(CNN) — Judges in Chicago, Minneapolis and Washington, DC, have tried to hold the Trump administration accountable for questionable actions inside and outside of court over the past year, but their efforts have been repeatedly stymied through the appeals process, stonewalling and other tactics.

But the federal bench in Rhode Island is taking a fresh approach, naming a special counsel last week to investigate a senior Justice Department attorney’s alleged misconduct in an immigration case.

Legal experts tell CNN the move appears designed to insulate the process from the kind of fierce opposition other federal courts have faced when attempting to gather basic information about possible missteps by the government or ensure compliance with court orders.

“It’s really all about accountability. The judges are going to try their darndest to hold everyone involved in these cases accountable. And the first line of accountability is the lawyers,” said former federal Judge William Smith, who, until January, presided over cases in The Ocean State. “It’s just extremely frustrating for the judges to have to deal with this.”

“It’s not common,” Smith, an appointee of former President George W. Bush, said of the special counsel appointment. “But it’s certainly something that the court has the authority to do.”

The move is the latest flashpoint in a fraught relationship between the Executive Branch and the federal judiciary that’s existed since President Donald Trump returned to office last year. Trump and his aides have frequently attacked judges appointed by presidents from both parties who have sided against the administration. And courts around the US have repeatedly warned that the current Justice Department has jeopardized the long-held assumption that it’s acting in good faith in court.

Benjamin Grimes, a former senior ethics official at the Justice Department who now teaches at Columbia Law School, said the situation speaks to a broader pattern of government lawyers playing fast and loose with professional rules in a way that undermines public confidence in the legal system.

“When something like this has happened in the past, it’s been an outlier. It’s not been emblematic of a series of data points that can be easily connected,” he said. “That’s what’s different.”

The Justice Department has not responded to a request for comment from CNN.

In response to the appointment, the top lawyer for the Department of Homeland Security attacked the judge at the center of the fracas and called into question the purpose of the special counsel probe.

DHS attacks judge, but DOJ attorney withheld key details

The situation in Rhode Island has been especially tense as it’s raised questions about the apparent willingness of DOJ attorneys to shun their ethical obligations in their representation of key government agencies in court.

In the case at hand, US District Judge Melissa DuBose, an appointee of former President Joe Biden, ordered officials late last month to release on bond Bryan Rafael Gomez, a noncitizen who had been arrested on assault and battery charges and later turned over to immigration officials to be detained pending deportation.

Days after DuBose ordered officials to release Gomez, who is from the Dominican Republic, the Department of Homeland Security slammed her in a press release as an “activist Biden judge” who knowingly let free “a violent criminal illegal alien who is wanted for murder in the Dominican Republic.”

Therein lied the problem: Following guidance from officials at Immigration and Customs Enforcement, a senior lawyer in the US Attorney’s Office in Rhode Island had deliberately withheld from DuBose information about a years-old homicide arrest warrant as she considered whether to order Gomez’s release from immigration custody.

The lawyer, Kevin Bolan, who oversees the office’s Civil Division, told DuBose in court papers that he wasn’t aware that the information had already been publicly disclosed by the agency and that he instead relied on their representation that he wasn’t authorized to share it with the court because “a legitimate law enforcement reason prevented disclosure.”

“Judge DuBose, therefore, lacked that information about the petitioner’s criminal background when she granted the petition,” Bolan wrote. “I sincerely apologize to Judge DuBose, personally, and to the entire court for the consequences of this lack of disclosure.”

In a two-day court hearing last week, according to a transcript obtained by CNN, Bolan acknowledged that DuBose likely would not have ordered Gomez’s release “had we made this very important disclosure, which we failed to do.”

The apology didn’t satisfy the judge. At the hearing, DuBose said the situation was “egregious enough” to warrant disciplinary proceedings against Bolan.

“It’s the candor and the lack of candor to this court that has to be addressed, and it has to be fully investigated so we don’t have anything like this happen again,” DuBose said in court last week, referring to ethical rules mandating that attorneys be honest and transparent in court.

The judge also demanded Bolan work to get DHS to take down the press release attacking her, which he agreed to do, though to date the post has not been removed from the department’s official website.

“As this particular post is out there it’s setting a false narrative,” the judge said during the hearing. “It puts people at risk, it’s a threat to judicial security. But, more importantly, there’s a fundamental misunderstanding of what it is that we’re doing every day and it’s not helpful. And again, I would argue that it’s actually dangerous.”

Responding to inquiries from CNN about the matter, DHS emailed a link to an op-ed published Tuesday in The Federalist by James Percival, the department’s general counsel, that said DuBose was engaging in “judicial misconduct” through her efforts to hold Bolan accountable for his alleged misconduct in the case.

He argued that the onus should not have been on ICE to inform her of the arrest warrant because, in his view, Gomez’s underlying challenge to his detention should have been handled by an immigration judge, not a federal district court.

“Because the court lacked any plausible basis to review Mr. Gomez’s custody status, it was entirely unreasonable to expect ICE to be prepared to present that information to the court,” he wrote.

DuBose said last week that officials could re-detain Gomez and that they must give him a bond hearing within a week of taking him back into custody. But two days later DOJ told her that ICE had not yet located him. No update has been given to the court since then.

Will a special counsel work?

Responding to DuBose’s referral last Thursday, the top judge in her district, John McConnell, appointed Niki Kuckes as special counsel to handle an investigation into the matter. McConnell said Kuckes has authority to request documents and conduct interviews and will submit a report of her findings and recommendations after she completes her review.

The process could eventually result in a punishment as significant as Bolan temporarily or permanently losing his ability to practice in federal court or a much lighter penalty, like a public reprimand or the imposition of fines.

“What’s critical is sending a message to the bar that regardless of what your government client is telling you to do, you have an absolute responsibility of being candid with the court. And that will always be expected,” Smith said. “Just by initiating the investigation – regardless of what the outcome is – that message has been sent by the court.”

Grimes said that over the course of several different presidential administrations he had never seen such a special counsel appointment to investigate alleged misconduct by a government attorney.

But Kuckes, he said, may find her work thwarted by a department that is unwilling to hand over information relevant to her probe.

“The relevant information is behind the wall of the DOJ, behind the wall of the government at DHS,” Grimes said. “And that’s going to be the big problem because a lack of participation in the investigation is going to stymie the special counsel’s ability to reach any conclusion with certainty.”

Former US Attorney Michael Moore agreed that the administration could simply thumb its nose at the special counsel. But, he added, “they would be doing it at their own peril” since some of the details of what unfolded have already emerged through court proceedings.

“So now, that’s the story they’re stuck with because they refuse to cooperate with the investigation or this is their chance to say, ‘No, that’s not the case,’” he said.

Judges have been halted elsewhere

In other high-profile cases in which judges have tried to get answers about questionable decision-making from the administration or hold lawyers accountable for missteps, courts have often been stopped in their tracks.

A federal judge in Minnesota who decided in February to hold a government attorney in civil contempt for failing to comply with her orders in an immigration case is having her contempt order vigorously challenged before an appeals court.

Last year, as Trump’s immigration blitz in the Chicago area led to clashes between federal agents and protesters, a judge’s effort to get a top Border Patrol official to appear before her daily to ensure compliance with restrictions she placed on how agents under his command can operate was upended after the Justice Department asked a different appeals court to intervene.

The 7th US Circuit Court of Appeals said at the time that US District Judge Sara Ellis’ order requiring Gregory Bovino’s daily check-ins wrongly set the district court up as “a supervisor of Chief Bovino’s activities, intruding into personnel management decisions of the Executive Branch.”

And in Washington, DC, Judge James Boasberg has for more than a year attempted to undertake an investigation into who made certain decisions in a high-stakes immigration case before him that resulted in scores of immigrants being flown to a mega-prison in El Salvador despite his orders temporarily halting the deportation flights.

Repeated appeals from DOJ have resulted in Boasberg being unable to summon current and former department officials to his courtroom to answer questions about the matter under oath as he sought to move ahead with a criminal contempt inquiry, which officials have cast as a fishing expedition by a judge with an axe to grind.

“I certainly intend to find out what happened on that day,” Boasberg said last year as he announced plans to restart the proceedings. “This has been sitting for a long time and I believe that justice requires me to move promptly on this.”

But soon thereafter, his plans were again shut down by the US DC Circuit Court Appeals.

In the Rhode Island matter, Smith noted that by using a special counsel, the court has the benefit of being “one step away from that investigation so that it can’t be accused of sort of infecting its conclusion with bias.”

“The judge – and to some degree the court – are sort of the victims of these unfounded attacks,” Smith said. “It’s more difficult for them to do sort of an evaluation of the attorney’s conduct without the potential of that looking like it’s been tainted by the fact that they’ve been attacked.”

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