The Department of Justice occupies a unique role in American government: it is headed by an attorney general who serves at the pleasure of the president but is at heart a legal institution whose credibility depends on its perceived independence from political influence. Managing that tension has, over decades and across administrations, produced a set of norms — some formalized in policy, some embedded in practice, some reinforced by courts — that guide how DOJ conducts litigation and resolves cases. These norms around the appropriate content of settlement agreements and conduct when the government changes position in litigation reinforce a commitment to resolving litigation to benefit the public interest rather than to achieve political goals and reflect respect for administrative processes and separation of powers. DOJ has historically functioned as an institution where process and deliberation are valued, forbearance from unjust use of power is a basic tenet, and the rule of law is paramount.

The second Trump administration has tested those norms, pushing past them in consequential and troubling ways that have impacted environmental law. This analysis examines one slice of that broader pattern: how DOJ approaches negotiated resolution of litigation and changes in litigating position. DOJ’s behavior around settlements and changes of position has attracted attention. Legal observers and the press have described a pattern of settlements with “friendly adversaries” that the administration has used as a “deregulatory weapon.”

Drawing on the Justice Manual, longstanding departmental practice, and caselaw, this paper identifies the norms that have historically governed DOJ’s conduct around settlements and changes in position, examines recent actions that appear to deviate from them, and considers what those deviations reveal about an administration willing to use litigation and settlement as instruments of policy.

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