The ‘Presumption of Regularity’ Is Evaporating

Never before in American history has a president abused his authority so blatantly to prosecute his enemies. For defendants pursued by Donald Trump’s Justice Department, this paucity of historical precedents initially presented a problem: Not much law on the books can help someone fight back against a malicious prosecution, and what law does exist tends to be favorable to the government.That is changing now. Defense lawyers for people targeted are finding that motions that might have once been dismissed out of hand are being seriously considered—and even granted—by judges newly skeptical of DOJ’s integrity and fidelity to the law. As the shoddy criminal cases against Trump’s enemies stretch on, and as their numbers mount, defense lawyers are starting to sketch out the earliest drafts of a road map for how to respond to politically abusive prosecutions. And judges, skeptical of what they are seeing from DOJ, have begun building upon one another’s work to adapt criminal law to an era when the federal government cannot be trusted.In particular, two defense tactics that have historically faced long odds are newly succeeding in court: seeking access to secret grand-jury transcripts to see if prosecutors fudged the law in pursuing an indictment, and asking judges to dismiss charges on the grounds of “vindictive or selective prosecution.” The standard for granting such requests from the defense has long been high, because courts have usually shied away from questioning DOJ’s propriety.Legal scholars sometimes call this approach by judges the “presumption of regularity”—the idea that the government should generally be trusted to be acting honestly. But the flamboyant dishonesty of the second Trump administration has put this presumption to the test, forcing judges to navigate unknown legal territory.[Quinta Jurecic: A Department of Justice for an age of conspiracy theories]Early glimmers of this shift in the law first appeared following a spree of shaky prosecutions of anti