A government shutdown could disrupt some of the highest-profile litigation in the country in October — though not the federal criminal cases against former President Donald Trump.
Should Congress fail to pass spending legislation before Oct. 1, the federal courts will have enough funds to keep the doors open for a while, though many civil cases would taper off because of the shutdown’s effect on Department of Justice operations, according to a contingency plan published this week.
The plan states the Justice Department will exempt more than 84 percent of the department’s workforce, or more than 96,000 employees, from a shutdown furlough. That includes employees “necessary to protect life and property” like the Bureau of Prisons, Drug Enforcement Administration and others.
The contingency plan noted that criminal prosecutions would continue as normal. Funding for Special Counsel John L. “Jack” Smith, supervising the criminal cases against Trump in Washington and Florida, comes from a “permanent, indefinite” appropriation which continues in the event of a shutdown.
However, civil litigation will be “curtailed or postponed to the extent that this can be done without compromising to a significant degree the safety of human life or the protection of property,” according to the contingency plan.
The contingency plan noted that DOJ will scale back its staffing on civil litigation to the bare minimum, subject to possible court order.
In the past, longer shutdowns have meant pauses in even high-profile litigation as the DOJ furloughed the staff working on them, such as a challenge to the 2010 health care law.
During the 2018 federal government shutdown, the Trump administration successfully requested that the U.S. Court of Appeals for the 5th Circuit delay the case in January. That litigation resumed after the shutdown ended Jan. 25 that year.
The DOJ is litigating several high-profile cases, including a dispute at the 5th Circuit over the Biden administration’s ability to communicate with social media companies.
It’s unclear what impact the shutdown may have on the first few weeks of the Supreme Court’s term, which is scheduled to start Monday. The DOJ contingency plan specifies that Solicitor General Elizabeth Prelogar is exempt from a furlough, as well as 45 of the 49 employees in her office.
Either Prelogar or other attorneys in that office are scheduled to participate in all three of the court’s cases set for argument next week. A representative for the DOJ declined to comment on the impact a shutdown may have on the SG’s office more broadly.
Judge Lavenski Smith, who chairs the executive committee of the Judicial Conference, which is the policy body for the federal judiciary, told reporters earlier this month that the body did not discuss an October shutdown at their semiannual meeting, as there are existing plans to handle one.
Smith said the judiciary may have funds to continue normal operations for a few weeks.
“Plans are being considered for that possibility and how the judiciary might keep the courthouse doors open, so to speak, in the unfortunate event of a government shutdown,” Smith said.
Peter Kaplan, a spokesman for the Administrative Office of U.S. Courts, said Monday the judiciary has funds to continue operating until at least October 13. Beyond that date, Kaplan said the judiciary is still assessing whether it would have funds to operate normally or use its “shutdown plans.”
Those plans could mean curtailed court operations down to only those “needed to support the exercise of the Judiciary’s constitutional functions and to address emergency circumstances” to comply with the Antideficiency Act.
Both the judiciary and DOJ, which represents the federal government in most litigation, have to plan around that law, which prevents the government from incurring financial obligations without an appropriation or from accepting volunteer work, according to the Government Accountability Office.
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