In a March 24 letter to Judge P. Kevin Castel, the U.S. Attorney’s Office for the Southern District of New York, led by Jay Clayton, did something rather remarkable. Clayton let the court know that the government’s representations about a material fact was wrong. Like, completely erroneous. Yikestown.
The federal government’s relationship with the truth in the Trump II era when standing in front of a federal judge continues to be, let’s say, flexible. In African Communities Together v. Lyons, the government had repeatedly represented in both briefing and oral argument, that ICE policy restricted immigration arrests in or near courthouses. That position leaned heavily on a 2025 ICE guidance memo. The only problem with that? According to ICE, that policy never actually applied to immigration courts regardless of where they’re located.
The SDNY is now “correct[ing] a material mistaken statement of fact,” which basically involves a litigation reset as the government has to withdraw chunks of its prior filings and conceded that the court’s earlier decision (which relied on those representations) will now have to be revisited.
According to Clayton, it was only after months of litigation, briefing, and a judicial opinion already on the books that SDNY learned of the “regrettable error” that “appears to have occurred because of agency attorney error.” Back. That. Bus. Up. Seriously, Clayton is not being subtle. This is Jay Clayton tossing ICE under the nearest available bus in a move that reads like reputational self-preservation.
And, to be fair, you can see why. SDNY’s brand is built on credibility. When that starts to crack, the whole enterprise is in trouble.
Clayton’s move here is both savvy and revealing. By documenting that SDNY lawyers relied on ICE’s representations — and even got sign-off from ICE counsel — he’s building a record that attempts to shield his office from judicial ire. It’s a preemptive strike against the inevitable question… How the fuck did you let this happen?
But the cost of that strategy is obvious. It publicly exposes a breakdown inside the federal government so severe that one component can mislead another into misleading a federal judge.
Judge Castel’s reaction to this debacle remains to be seen. Despite Clayton’s best effort to save the SDNY’s hide, it may not be enough… because someone sure has to pay for the wild disrespect of the judicial process.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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