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Trump's DOJ broke its promise to a judge, now they say the judge is the problem for being angry with them.

After roughly 430 trees came down without the notice it promised, the administration says the judge's anger is the real problem.

Trump's DOJ broke its promise to a judge, now they say the judge is the problem for being angry with them.
Stock photo, not from the event described. Photo by Daniel Miksha on Unsplash

Every trial lawyer knows the move. When the facts are bad and the law is worse, you put somebody else on trial. Usually it's the witness. Sometimes it's opposing counsel. The Trump administration has decided to put the judge on trial.

On Friday, Oct. 16, the Justice Department asked U.S. District Judge Ana Reyes to step off the case over President Trump's plans for East Potomac Golf Course, the public course on Hains Point in Washington. The motion, signed by Associate Attorney General Stanley E. Woodward Jr., says "Judge Reyes's behavior in this case is nothing short of egregious" and that "no reasonable observer could consider Judge Reyes sufficiently impartial." It complains about her "histrionics" and her "disdain for the Trump Administration." It even asks the court to release the audio of last Monday's hearing so the public can "fully appreciate Judge Reyes's animosity."

We'd love to hear that audio too. Here's what's on it.

What actually made the judge angry

For five months, Reyes turned down preservationists who wanted the work at the course blocked, because the government kept promising to give notice before anything big happened. "Your Honor, you have been clear on that point, and we will provide plaintiffs with that notice should that happen," a government lawyer told her in May.

Then, just before 5 p.m. on Friday, Oct. 9, heading into a holiday weekend, officials told the court that tree clearing would start the next morning. By Monday, roughly 430 trees were down, by the government's own count. Plaintiffs put the number at 529.

The record on why it had to happen that weekend is thin. A 2019 tree plan sat on the shelf for years, then moved from an Interior Department meeting on Monday, Oct. 5, to chainsaws on Saturday. On Oct. 6, the government told the court in a sworn declaration that renovation plans "remain in the conceptual stage." The judge asked the Park Service's deputy director to name one other project that had ever moved that fast. He couldn't.

So, yes, Reyes got angry. "What has happened has cost the government all of its credibility with me in this case," she said. When a government lawyer said they had done their best to notify the court, the judge answered: "No, you did not do your best; you did your absolute worst." She halted the clearing through Oct. 26 and ordered two senior officials, Interior Deputy Chief of Staff Greg Wischer and acting Park Service Director Jessica Bowron, to testify at a hearing Monday, Oct. 19.

Four days after that order, the administration asked for a new judge.

Anger isn't bias. Justice Scalia said so.

The motion relies on 28 U.S.C. § 455(a), which requires a judge to step aside "in any proceeding in which his impartiality might reasonably be questioned." It's a real rule, and it matters. It doesn't cover a judge who gets mad at you for breaking your promise to her.

The Supreme Court settled that in 1994, in an opinion by Justice Antonin Scalia, no one's idea of a liberal. Opinions a judge forms from what happens in the case "do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible" (Liteky v. United States). Judicial remarks that are "critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." The Court even listed what doesn't count: "expressions of impatience, dissatisfaction, annoyance, and even anger."

Read that list again, then read the motion. The administration's complaint is that a federal judge was impatient, dissatisfied, annoyed, and angry after it cut down hundreds of trees she had asked for notice about. That's not a recusal motion. That's a confession with a caption on it.

The motion also objects that the judge showed "cavalier disregard" for officials' "valuable time" by calling them to testify. The officials' time became the court's business the moment their decisions put hundreds of trees on the ground. Wischer, the official who called the Oct. 5 meeting, didn't appear Monday. The judge wants to hear from him on the 19th. The motion landed three days before he's due on the stand.

Why working people should care

This isn't about golf. It's about whether the government's word in court means anything. Every worker who sues over unpaid wages, every family fighting a deportation, every union defending a contract depends on judges who can hold the government to its promises. If the price of holding officials accountable is a motion to remove you, some judges will think twice. That's what makes this motion unacceptable, whatever happens to it.

Reyes ordered the plaintiffs to respond to the motion by Sunday. Watch whether she rules on it before Monday's hearing, and whether Wischer shows up to explain the weekend that cost the government its credibility. If he doesn't, the administration will have answered the judge's question for her.

Sources

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