When courts stop trusting government lawyers, everyone loses

Andrew Mergen spent 30 years inside the Department of Justice. He knows how the system works because he helped make it work — the quiet machinery of federal law, where judges and government attorneys operate on a foundation of assumed good faith.

That foundation is cracking.

"There's a common-sense notion that we assume that people in our day-to-day lives are doing what they are supposed to do," Mergen, now a visiting assistant clinical professor at Harvard Law School, explains. "In government, the idea is that we should assume that government people are discharging their duties in an upright and forthright and legal way."

This presumption—called the "presumption of regularity"—does practical work. It keeps courts from drowning in procedural minutiae. It lets judges trust that when a federal agency files a brief, the facts are honestly presented. It makes the whole system move.

But in recent months, federal judges have publicly questioned the truthfulness of Trump administration attorneys in several high-profile cases. And that's where Mergen's 30 years of experience becomes a warning.

The Cost of Lost Trust

When Mergen was at the DOJ, he understood something fundamental: the department has a special obligation. You don't just argue your case—you argue it truthfully. You don't hide inconvenient facts. You don't mislead the court. This isn't idealism. It's the price of being trusted with government power.

Once that trust erodes, it doesn't stay contained to the controversial cases. "What's terrifying about this moment is that it will carry over," Mergen says. "One of the things that's really damaging about the way that the administration is treating the courts is that it is going to hurt the credibility of the Justice Department overall."

Think about what that means. The DOJ doesn't just handle flashy constitutional battles. It defends routine regulations, enforces environmental law, prosecutes ordinary crimes. If judges start assuming the government is being deceptive—if that presumption of regularity collapses—even boring cases become harder to win. Every brief gets scrutinized. Every claim gets questioned. The machinery slows down, and the damage spreads.

Mergen is blunt about the stakes: "If judges don't believe the government, you are in a really, really bad place."

The presumption of regularity exists because both sides—courts and government—agreed it was worth having. It's not a gift. It's a mutual understanding built on reputation. And reputation, once damaged, takes years to rebuild.