A lawyer’s credibility with the judge is one key to courtroom success. Far too often though, I observe federal judges treat DOJ lawyers as credible (until proven not credible) and treat defense counsel as not credible (until proven credible). Judges routinely accept representations by prosecutors as presumptively truthful.
This “presumption of credibility” that was routinely bestowed upon DOJ lawyers is rapidly eroding these days.
And that’s a very good thing.
For decades, DOJ lawyers have enjoyed a remarkable privilege every time they stand up in a federal courtroom and announce that they appear “for the United States.” Even the fairest judges often reflexively defer to DOJ lawyers’ recitation of the facts or the law. This deference is deeply problematic for two reasons.
First, the courtroom is often a zero-sum game; if the judge credits the DOJ lawyer’s representation, then the judge does not credit defense counsel’s response. This result undermines the fairness of the adversarial system. Sure, defense counsel can try to convince a judge that what the DOJ lawyer said was wrong by pointing to the record or to precedent. But time is short, dockets are crowded, and it is often not worth spending defense counsel’s limited capital to challenge every misstatement.
Second, there are circumstances where DOJ lawyers make completely unchallengeable but substantively crucial representations, such as, “Yes, Your Honor, we’ve searched for and produced all Brady material” or “we’ve handed over all Jencks material” or “we’ve reviewed the agent’s handwritten notes of that witness interview and the 302 contains all relevant information.” The defense has no way to factcheck these representations in real time–or ever. So, when a judge takes them at face value, they become the objective truth, sometimes at the defendant’s expense.
If you doubt that the presumption exists, consider the decisions of federal judges who are visibly shocked and dismayed that DOJ would make misrepresentations or ignore court orders. For example, in a case related to “U.S. Attorney” Lindsey Halligan, a judge in the Eastern District of Virginia recently said that “the Court finds it inconceivable that the Department of Justice, which holds a duty to faithfully execute the laws of the United States even those with which it may have disagreement would repeatedly ignore court orders, while simultaneously prosecuting citizens for breaking the law.” (Despite being found to be unlawfully serving as the U.S. Attorney, Halligan thought it was ok to continue to sign pleadings that she was the U.S. Attorney.)
I want to talk a little bit about why this presumption of credibility has always been baseless, why it’s changing now, and why this change is a positive outcome for the rule of law.
Why This Presumption of Credibility Has Never Made Sense
This presumption has never made sense.
After all, DOJ lawyers and defense lawyers are subject to the exact same ethical rules. We must zealously represent our clients. We are officers of the court. We take oaths to uphold the Constitution. And let’s acknowledge the obvious: we are also human beings. DOJ lawyers and defense lawyers prefer winning to losing. We face career pressure to win cases and professional scrutiny based on the outcome of those cases.
The presumption also doesn’t make sense because it gives even more power to already powerful prosecutors. In 1940, Attorney General Robert Jackson gave a famous speech titled “The Federal Prosecutor” that captured this reality:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.
Prosecutorial discretion in charging decisions, combined with frequent judicial deference to prosecutors’ representations, is a deeply concerning circumstance.
One plausible explanation for the presumption may be that a judge has learned from experience that a particular prosecutor is credible because she doesn’t play fast and loose with the facts or the law. This is a fair point, and I’ve seen it play out the same way for respected defense counsel (ahem, me!) who have appeared before the same judge multiple times.
But this explanation cannot doesn’t justify giving the same deference to out-of-town Main Justice prosecutors. And it’s impossible to believe that every judge has experience with every prosecutor in the larger districts across the country.
[Note that there is a related presumption called the “presumption of regularity.” While it’s not the law, it allows courts to presume that executive officials have properly discharged their official duties and that agencies have acted for real and not pretextual reasons, unless there is clear evidence to the contrary. This presumption has generally been applied to government actions, not the statements of DOJ lawyers in court, although the same justification likely applies to both.]
The Rapid Erosion of DOJ’s Presumption of Credibility
The current administration has transformed the Department of Justice in ways that make the presumption of credibility not just unjustified but actively dangerous to the fair administration of justice.
Attorney General Pam Bondi and FBI Director Kash Patel are pure political animals—not public servants—and they are untethered by the rule of law. Under their leadership, DOJ lawyers have lied to courts across the country, defied judicial orders, and ignored precedent in favor of President Trump’s political objectives. This Administration is systematically trying to tear down the rule of law and use DOJ system as a weapon against political enemies. See, e.g., James Comey, Letitia James, and Jerome Powell.
These are not a few bad apples. DOJ leadership is rotting the organization from the top. Bondi and Patel are far from the only participants. There are an unfortunate number of political appointees and other DOJ lawyers who are willing and enthusiastic players in this game of using DOJ’s power for evil rather than for the public good.
To be clear, not all DOJ lawyers are participating in the destruction or desirous of it. Some DOJ lawyers have refused to lie in court, who have become whistleblowers after being fired. Some DOJ lawyers have tried to do the right thing. They face termination for their bravery when they should face commendation. Some are trying to keep their heads down and survive the next three years.
The evidence for this transformation is overwhelming and well-documented by multiple respected publications:
The Center for American Progress documented the rampant irregularity coming out of DOJ, noting that judges are now openly doubting government representations in ways that would have been unthinkable in previous administrations.
The Brennan Center for Justice detailed how the Trump Administration has systematically dismantled DOJ’s internal checks on abuses of power, leaving courts to grapple with the consequences as they confront a DOJ presenting questionable legal positions, evading court orders, and overstepping prosecutorial authority.
Just Security’s Ryan Goodman and his team have catalogued dozens of cases where courts have shown concern over noncompliance with judicial orders or expressed distrust of government information and representations. (It was last updated in October 2025, and I hope they keep up the process because it is a roadmap to getting rid of the lawyers who engaged in this process.)
The Path Forward Without the Presumption of Credibility
Federal judges should keep the skepticism they’ve recently begun to show toward DOJ lawyers. They should maintain that skepticism permanently and across the board, not just in this moment and not just in high profile or “political” cases.
The presumption of credibility violates fundamental principles of our justice system. It violates the principle that judges will act without “fear or favor” by showing preference to the government.
A defense lawyer and a prosecutor should be on an even playing field when it comes to credibility. Both should have to earn the court’s trust through the quality of their arguments, the accuracy of their factual representations, and their adherence to ethical standards. Neither should get a presumption in their favor simply because of the party they represent, whether it is the United States or a person accused of a heinous crime.
None of this is to denigrate the district court judges who have the one consistent bulwark against authoritarianism. A particular shoutout to the judges on the federal bench in the District of Columbia who faced years of threats and attempted intimidation when they presided over the January 6th cases and now face daily attacks for deciding hotly contested cases against this Administration. What DOJ is doing is a travesty with incalculable consequences and judges should keep speaking out about it.
I recognize that casting aside the presumption won’t make judges’ jobs any easier. It will require more scrutiny of government filings, more skepticism of prosecutorial representations, and more willingness to hold DOJ lawyers accountable when they mislead the court or fail to comply with orders.
But ending the presumption is also the only way to ensure that our justice system lives up to its promise of equal justice under law.