General Discussion

The “presumption of regularity” is a judicially created doctrine with a long and contested history. The doctrine affords the executive branch a distinctive advantage not enjoyed by private litigants.[1] It generally instructs courts to presume, unless there is clear evidence to the contrary, that executive officials have “properly discharged their official duties” and that government agencies have acted with procedural regularity and with bona fide, non-pretextual reasons. In practice, the presumption can preclude discovery, limit review of the facts, and truncate cases. It can constrict (or even end) civil suits challenging government action and curb criminal defendants’ ability to claim vindictive or selective prosecution, and more.

Over the decades, the scope and weight of the presumption has fluctuated. In the face of extraordinary executive misconduct or malfeasance, courts may choose (explicitly or implicitly) to narrow its scope, reduce its weight, or even potentially deem the presumption more generally forfeited, as the Trump administration is beginning to learn. Indeed, Judge Paul L. Friedman cautioned in an August 2025 opinion:

“Generations of presidential administrations and public officials have validated this underlying premise of the presumption of regularity: their actions writ large have raised little question that they act ‘in obedience to [their] duty.’ Over the last six months, however, courts have seen instance after instance of departures from this tradition. … In just six months, the President of the United States may have forfeited the right to such a presumption of regularity.” (emphasis added).

....In sum, the presumption of regularity “credits to the executive branch certain facts about what happened and why and, in doing so, narrows judicial scrutiny and widens executive discretion over decisionmaking processes and outcomes,” as an influential Harvard Law Review Note explained. But the maintenance of the presumption rests on certain foundations, and those foundations have been eroded by the Trump administration, especially the Justice Department, in the following three ways.