MD judges urge 4th Circuit to affirm dismissal of Trump lawsuit

Maryland’s federal judges “take no issue” with the Trump administration’s decision to dismiss its lawsuit against them, but urged the appellate court not to vacate the order dismissing the case.

The Trump administration last month moved to drop its lawsuit against the judges over a judicial standing order which sought to ensure due process for people facing deportation.

The order was issued in the wake of the deportation of Kilmar Abrego Garcia and hundreds of Venezuelans, without due process, to a Salvadoran prison notorious for torture. It paused deportations or removals for about two days after a person files a petition for writ of habeas corpus. Habeas petitions seek to force the government to justify a person’s detention or removal in court.

The administration argued that a new order, issued in December by Maryland U.S. District Court Chief Judge George Russell III, made the lawsuit moot, and asked the U.S. Court of Appeals for the Fourth Circuit to vacate the district court judge’s forceful opinion dismissing the case.

The judges replied on Jan. 30, arguing that the decision by Trump-appointed U.S. District Judge Thomas Cullen to dismiss the case should not be thrown out and that the dispute “remains very much live.”

“(The defendants) take no issue with the Executive’s decision to voluntarily dismiss its appeal,” the reply states.

“Quite the contrary: This extraordinary lawsuit never should have been filed, and once Judge Cullen thoroughly repudiated it as violating bedrock principles of separation of powers, Article III jurisdiction, equity practice, and immunity, the Executive should never have appealed. Ideally, a lawsuit like this will never be filed again.”

The judges are represented by Clement & Murphy, a Northern Virginia law firm co-founded by Paul Clement, a Republican who served as solicitor general under President George W. Bush.

They argue the move to drop the case is a “tactical decision” to avoid a precedent-setting ruling by the Fourth Circuit to affirm the lower court’s opinion. Vacating the ruling, they argue, would give the administration exactly what it wants: a fresh opportunity to challenge the judiciary anew.

Russell sought public comments before issuing the December order, a move that rendered part of the government’s challenge moot. In his comments opposing the new order, Todd Lyons, the acting director of U.S. Immigration and Customs Enforcement, claimed it was “equally misguided” and that the orders “impair and frustrate ICE removal efforts.”

“The Executive thus clearly does not think that the amendments to the challenged orders moot its challenges,” the judges argued; “it just apparently would prefer to press those challenges in a new lawsuit instead of in this one, especially if it can wipe out Judge Cullen’s opinion with zero risk of affirmance.”