I was afraid of this.
I am completely in sympathy with President Trump’s determination to have only people he can trust as his department and agency heads after his first term debacle, when so many people stabbed him in the back that his suits must have looked like pin cushions. Nonetheless, appointing Pam Bondi as Attorney General was reckless and hard to defend, as Bondi and “legal ethics” have seldom been compatible. This episode is a particularly blatant example.
Erez Reuveni has worked at the Justice Department for nearly 15 years, most recently as the acting deputy director of the Office of Immigration Litigation. Reuveni appeared in federal court in Maryland last week to respond to the court’s questions regarding the government’s admission that it should not have deported Kilmar Abrego García on March 15 as part of the airlift of purported gang members to the Terrorism Confinement Center in El Salvador. Reuveni acknowledged the mistake and told a judge that he did not know what authority the U.S. used to deport Abrego García. “My answer to a lot of these questions is going to be frustrating,” Reuveni told U.S. District Judge Paula Xinis. “And I’m frustrated that I don’t have answers to a lot of these questions.” Xinis ordered the Trump administration to arrange the return of Abrego García, who is married to a U.S. citizen, by no later than 11:59 p.m. today.
Attorney General Bondi promptly suspended Reuveni. Bondi explained, “At my direction, every Department of Justice attorney is required to zealously advocate on behalf of the United States. Any attorney who fails to abide by this direction will face consequences.”
Wrong. The duty of zealous representation is limited in the case of Justice Department attorneys, and by extension, government attorneys generally. What I call “The Burger Principle” was first articulated by the Supreme Court in Berger v. United States, 295 U.S. 78, 85, 55 S.Ct. 629, 633 (1935):
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal case is not that it shall win a case, but that justice shall be done.”
Various courts in various cases have cited Berger for the proposition that the principle should and must apply to all government attorneys, whether in civil or criminal litigation. Private attorneys, despite their rote rhetoric about seeking justice, are seeking their clients’ lawful objectives, and if the opposing side has the better case from an objective viewpoint, they don’t need to pay attention to that. They are partisan; they are committed to winning for their clients. What Berger says, and correctly so, is that government attorneys may not be so partisan that they deny justice and fair application of the law to citizens and “the People,” because the government must always represent “the People.” Indeed, this is a conflict of interest which the government, in this case the Justice Department, must waive.
In short, when the government is wrong, its lawyers must say so. When the government has acted unjustly, “zealous representation” cannot justify a government lawyer insisting that it acted correctly. Zealous representation by government attorneys is limited. Bondi is wrong. That’s a fact.
I wonder if the AG knows about the Berger Principle. She should. Those words above are engraved on the outside of the Justice Department’s building.
Ethics Alarms 
It’s going to be interesting to see how this plays out. I think a majority of the population, myself included, are at least sympathetic to, if not in favor of, Trump’s stated goal of deporting as many illegal immigrants as possible, particularly those with criminal records. But playing fast and loose with people’s valid civil liberties is going to cost Trump severely in the court of public opinion as well as in the actual court system.
Deporting people who have are here legally and haven’t broken any laws is just wrong, and any mistakes made in the zeal to deport actual illegal aliens quickly should be corrected just as quickly. Unfortunately, as Konstantin Kisen said on Rogan’s podcast, the tendency is to deny the mistake rather than rectify it.
Further, there’s the issue of whether it was proper to deport all those gang members to prisons in El Salvador in the first place. While it’s probably condign justice for most of them, I think we want to be following the actual law rather than aiming for condign justice. As Glenn Greenwald articulated, nobody serious would raise an objection to the Venezuelan gang members being deported back to Venezuela, as the government has a low bar to overcome deporting people here illegally back to their country of origin. Sending them to a brutal prison in El Salvador, though, possibly for life, should require a much higher legal bar, no matter how much we’d like to see them suffer. The case of Abrego Garcia perfectly demonstrates why.
Yep. I’m in complete sympathy with the idea that you need to be pulling in the same direction as the administration or searching for another employer, but Bondi’s take is wrong, and you correctly illustrate the reason why.
She needs to do better.
I honestly don’t think she’s capable of doing better.
Well, I’m giving her the benefit of the doubt for now.
If dude was a member of MS-13, would that nullified/diminished his deportation protections(there is no dispute concerning his illegal status?) ? If yes, wouldn’t Bondi’s action against Reuveni’s lack of zeal be less bad?
“My answer to a lot of these questions is going to be frustrating,” Reuveni told U.S. District Judge Paula Xinis. “And I’m frustrated that I don’t have answers to a lot of these questions.”
I would say that he was ill prepared to go into court. What steps did he take to get his questions answered and what did he say to his superiors prior to making the above statement to a judge. I would not have walked into the courtroom not having an answer to that fundamental question.
My understanding of zealous representation means that you are prepared for just about anything that the other side might throw at you. The question of what authority did the government rely on should have been the first question he should have known.
Do we know what efforts this US attorney made to prepare for the court appearance or are we using this the find fault with the administration? I’m willing to be persuaded and I will concede that the US attorney’s are bound to seek justice but if the attorney fails to prepare in order to sandbag the case he is not seeking justice he is being political.
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal case is not that it shall win a case, but that justice shall be done.”
It seems that this principal was discarded by the last DOJ when it zealously prosecuted people for FACE act violations but only on the wrong political side and who used all sorts of means to identify and punish rioters on January 6, pushed for long sentences for them while turning a virtual blind eye to the rioters who laid a three day siege on the White Hose, burned federal courthouses, the Church of the Presidents, and buildings in Lafayette Park and did 2 billion dollars worth of property damage to the private sector.
They can’t discard it. They can try to ignore it, and many, many government lawyers have and do.
The last few years has caused my faith in the justice system to be destroyed. When we have elected prosecutors campaigning on getting so and so or having meetings with opposition leaders in the White House or raising money to provide bail to those arrested for violent rioting, and ignoring favored group criminal activities while going out of their way to find some grandmother in Alaska to prosecute for walking through the Capitol the Burger principal seems rather provincial.
From a number of other articles on this, it sounds like this person SHOULD have been deported, just technically not back to his original country (where, years back, he claimed he would be in danger) without further review of the facts.
https://townhall.com/tipsheet/mattvespa/2025/04/01/the-atlantic-got-caught-lying-again-this-time-on-a-deportation-fake-news-sob-story-n2654804
The government lawyer, instead of explaining the situation in court, just fumbled around as if there were no explanation or relevant information available. If that’s the case, he was either totally unprepared, or deliberately botching his duty, and making the administration look bad. That’s why he was fired.
I think there are better articles explaining this than the one I linked, but I’m in the middle of the Atlantic, working on a cellphone, and cross-checking and posting is difficult at the moment…sorry.