Another senior official resigned from the Justice Department after the midterm elections, and one more appears to be nominated for a federal judgeship.
Attorney General Todd Blanche announced the resignation of Assistant Attorney General Brett Shumate, head of the Civil Division, on social media on Monday. Blanche praised Shumate for the administration’s legal victories in culture war cases involving corporate diversity policies, restrictions on transgender care, and immigration enforcement.
“We are grateful for Brett’s service at DOJ and wish him continued success,” Blanche said.
And the Justice Department has sent the Senate Judiciary Committee nomination paperwork for Assistant Attorney General T. Elliot Gaiser to be a federal judge in Texas. At 37 Gaiser is one of the youngest lawyers to lead the Office of Legal Counsel, which provides advice to the executive branch but is often used to justify presidential policies.
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Under his watch, the DOJ blessed the Trump administration’s extrajudicial bombing of sailors it accused of running drugs without ever publicly presenting evidence of their guilt — in a formal legal opinion that was classified.
Another opinion earlier this year unilaterally declared that the Presidential Records Act is unconstitutional, an attempt by the Trump White House to assert control of documents that could later prove damning or embarrassing that is now being fought over in appellate court.
Gaiser is expected to remain in his role if he does not reach the federal bench, a Justice Department official said. The Republican-controlled Senate has less than two months to confirm him before Democrats take control of the nominations process in the next session in January.
Shumate is the fourth senior DOJ official to resign since Democrats’ sweeping wins in the midterm elections.
Two other critical DOJ units lost their leaders — Harmeet Dhillon of the Civil Rights Division and John Eisenberg of the National Security Division — after resignations last week. And Jason Reding Quiñones, the U.S. attorney in South Florida handling the DOJ’s fizzling “grand conspiracy” probe of President Donald Trump’s perceived enemies, resigned as well.
The four officials all held Senate-confirmed positions. The White House has not announced nominees to fill the roles.
Shumate ran the Justice Department’s sprawling litigation arm for a little less than two years, during which hundreds of experienced attorneys and staffers left.
The losses became so severe this year that Shumate began offering retention and hiring bonuses to attorneys for what appeared to be the first time in DOJ history, Bloomberg reported.
Shumate oversaw the defense of the Trump administration’s most controversial policies as head of the Civil Division, his name and signature appended to scores of court briefs in civil cases brought by plaintiffs challenging Trump’s executive actions.
He was a regular presence in federal courtrooms, and his defenses of Trump’s aggressive assertions of executive power brought him into conflict with skeptical judges.
In his first days in the new administration, Shumate argued in court on behalf of Trump’s failed attempt to restrict birthright citizenship via executive order — a move a Republican-appointed judge called “blatantly unconstitutional.”
This fall, Shumate tried to convince a panel of appeals court judges to block a criminal contempt probe by U.S. District Judge James Boasberg into whether senior officials deliberately defied a judicial order on the administration’s deportation flights to El Salvador.
Several judges appeared visibly frustrated with Shumate’s insistence that former Homeland Security Secretary Kristi Noem was solely responsible, with one judge asking, “Do we just have to accept what you say?”
Shumate also helped implement Trump executive orders targeting cities and states that refused to cooperate immigration authorities, as well as policies restricting transgender care and cracking down on corporate diversity initiatives.
Under Gaiser’s leadership, the OLC approved a “proposed War Department operation” to abduct Venezuelan President Nicolás Maduro — who is now in jail and challenging the lawful authority of his upcoming criminal trial in New York City.
Former prosecutors have compared the memo to authorize U.S. killings on the high seas to the George W. Bush administration’s “torture memos” secretly approving cruel physical punishment of Muslims detained during the post-9/11 War on Terror. One of the authors of those torture memos, John Yoo, questioned the implementation of Gaiser’s orders in the military’s decision to kill survivors of a missile strike with a follow-up bombing.
Brian Finucane, a former counterterrorism advisor at the State Department who has become an outspoken critic of the boat strikes, noted that Jay Bybee, the George W. Bush administration official who led the OLC and signed off on the torture memos, later became a 9th U.S. Circuit Court of Appeals judge.
“The question now is whether senators will do their jobs, including as a threshold matter to press for the public release of the OLC boat strike memo,” Finucane said.
Gaiser has become a rising star for the conservative movement. He clerked with Justice Samuel Alito when the judge authored the majority Dobbs decision that ended the constitutional right to abortion by overturning Roe v. Wade.
After that, as Ohio’s solicitor general, Gaiser attempted to defend parts of the state’s six-week abortion ban even after citizens passed a wide-ranging reproductive freedom amendment to the state’s constitution.
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