Government Shutdown Could Impact High-Profile Litigation, DOJ Funding to Continue with Some Limitations
As the possibility of a government shutdown looms, concerns are emerging about the potential disruptions it could cause in the high-profile litigation landscape. However, it is important to note that the federal criminal cases against former President Donald Trump will remain unaffected. If Congress fails to pass spending legislation before October 1, the federal courts will have sufficient funds to continue their operations for a certain period. Nevertheless, the shutdown’s impact on the Department of Justice (DOJ) operations will likely lead to a tapering off of many civil cases.
According to a contingency plan recently published, the DOJ will exempt over 84 percent of its workforce, comprising more than 96,000 employees, from a shutdown furlough. This includes essential employees responsible for protecting life and property, such as those working at the Bureau of Prisons and the Drug Enforcement Administration.
The contingency plan ensures that criminal prosecutions will proceed as usual, unaffected by the shutdown. Special counsel John L. Jack Smith, who is overseeing the criminal cases against Trump in Washington and Florida, receives funding from a permanent, indefinite appropriation that remains intact during a shutdown.
However, it is the realm of civil litigation that will witness a curtailment or postponement, to the extent possible without compromising human safety or property protection. The DOJ will reduce its staffing on civil litigation to the bare minimum, potentially subject to court orders.
Previous government shutdowns have resulted in pauses in high-profile litigation as furloughs forced the DOJ to halt work on such cases. For instance, during the 2018 shutdown, the Trump administration requested a postponement of a case challenging the 2010 health care law from the U.S. Court of Appeals for the 5th Circuit. The litigation resumed once the shutdown concluded on January 25 of that year.
The current DOJ is engaged in several high-profile cases, including a dispute at the 5th Circuit regarding the Biden administration’s ability to communicate with social media companies. The impact of a potential shutdown on the initial weeks of the Supreme Court’s upcoming term, starting on Monday, remains uncertain. Nonetheless, the DOJ’s contingency plan specifies that Solicitor General Elizabeth Prelogar, as well as 45 of the 49 employees in her office, will be exempt from furloughs.
In conclusion, while a government shutdown could disrupt high-profile litigation and cause civil cases to taper off due to the DOJ’s limited operations, it is important to note that criminal cases, particularly those involving former President Trump, will continue unhindered. The impact on the Supreme Court’s upcoming term and ongoing high-profile cases remains uncertain. However, the DOJ is taking precautions to ensure that essential functions, such as protecting life and property, continue regardless of a potential shutdown.
