Five or six years ago, I was in federal court on an evidence motion. I don’t remember the issue, the claim, or whether I was for or against the motion. What I do remember like it happened today is the exchange I had with the judge.
An attorney for the opposing side made an accusation about my client’s conduct in discovery, prompting Judge Ruben Castillo to ask me if what they just told him was true. But the way they worded it, whether it was true or not true depended on several variables — if this, then that, if that, then yes but still possibly no because blah blah blah. I wasn’t sure about all those moving parts, but I didn’t map them out in my answer, because Castillo had already communicated his impatience. Maybe he was irritated with my client, maybe it was our theory of the case, or maybe it was just me. I’ll never know. So I skipped the exposition, and responded as sparely as I could, being truthful while avoiding any statement of fact that might turn out to be false or at least ambiguous.
It was the wrong decision. At the end of my answer, Castillo glared at me, then turned his face away to study the paneling. After a pause that lasted a week, he dramatically sucked air through clenched teeth and emphasized every word. “That. Was. A. Very. Very. Careful. Answer. Ms. Haake.”
Feeling naked, I thought, of course it’s a careful answer. You’re a federal judge, and I need to keep my law license. I’d think you’d always prefer careful answers to bombast. But I didn’t say any of that. Chastised, reading his mood, I thought it was best if I just took the hit.
The exchange wasn’t outcome determinative; in 30 years, I’ve never lost a jury trial or even a summary judgment. The point of the story is that members of the federal trial bar do not toy with federal judges without real fear. They do not get smart, evasive, or argumentative. Any question the judge deems relevant, you answer, whether you agree it’s relevant or not. To prepare for hearings — all hearings, any hearing you need to win — you try to anticipate questions the judge might ask, and if you don’t know the answer, you find out. If he asks an unexpected question you can’t answer, you respond with what you know, and you make very, very clear why you don’t know what you don’t know.
Trump lawyers are a different breed
Not so Trump’s DOJ lawyers. At a hearing last week about Trump’s deportation of Venezuelan immigrants to an El Salvador prison, Trump lawyer Abhishek Kambli refused to answer Judge James Boasberg’s entirely expected questions, and claimed that the president didn’t have to follow the judge’s order in any event. The DOJ argued in a court filing that, “there is no justification [for the court] to order the provision of additional information,” and that “the Government should not be required to disclose sensitive information bearing on national security and foreign relations.”
There was nothing classified about where the deportation flights went, who was on them, or why; Trump had made it a flashy PR stunt meant for mass consumption. Fox News repeatedly published footage of the flights, along with footage of prisoners’ heads being shaved, showing them degraded, cowered, chained, and bent over, and depicting the El Salvador slave-labor prison itself, including armed guards and prison staff. There is no alternative universe where what time the planes departed and who was on them could be deemed a “national security” secret after they landed.
In 30 years of federal litigation, I have never heard an attorney tell a federal judge that he didn’t have to answer his questions. On rare occasions when legitimate confidentiality issues arise, attorneys may answer the judge’s questions under seal, but they never tell the judge he can’t ask.
Lawlessness abounds
By now, it is obvious that the Trump administration disobeyed a direct order from a federal judge. History books will regard March 15 as the day American democracy retreated, not with a bang but with a whimper and a side order of snark.
Anyone who is still naive enough to support what Trump is doing should put down the pipe. Democracy can't exist without the rule of law. If there's no rule of law, flawed, corrupt men with the most money and power will seize control of all resources and they will stay in power by force.
We are dangerously close to that tipping point, and every single American needs to be on alert.
Sabrina Haake is a 25+ year federal trial attorney specializing in 1st and 14th A defense. Her columns are published in Alternet, Chicago Tribune, MSN, Out South Florida, Raw Story, Salon, Smart News and Windy City Times. Her Substack, The Haake Take, is free.
