This column by ACRU Policy Board member Hans von Spakovsky was published May 20, 2016 by National Review.
In one of the most devastating critiques I have ever read of the misbehavior of lawyers at the U.S. Justice Department, a federal judge has issued an order imposing sanctions in U.S. v. Texas, the immigration lawsuit filed by 26 states that is currently before the U.S. Supreme Court. Judge Andrew Hanen of the Southern District of Texas, which is the federal trial court where the lawsuit was originally filed, released a 28-page opinion on May 19 that takes the Justice Department and its lawyers to task for violating multiple ethics and court rules by intentionally misleading and lying to the court.
Hanen starts off his order by citing the dialogue from the 2015 movie Bridge of Spies. He quotes attorney James Donovan telling an FBI agent that what distinguishes us is “the rulebook”: “We call it the Constitution and we agree to the rules and that’s what makes us American,” says Donovan. Hanen writes that this entire case is about “allegiance to the rulebook,” whether it is “the Constitution or statutory law.” Both Judge Hanen and the Fifth Circuit Court of Appeals decided the government has to play by the rules, and the final decision on that issue is now with the Supreme Court, according to Hanen.
But what remains with Judge Hanen is whether “the Government’s lawyers must play by the rules.” He held that they clearly did not, saying that it is “indisputably clear” that DOJ’s lawyers made misrepresentations to the court “on multiple occasions starting with the very first hearing this Court held.” Judge Hanen stated that he would be remiss if he “left such unseemly and unprofessional conduct unaddressed.”
According to Hanen, the Justice Department “admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements.” The only explanation DOJ had was that the lawyers “lost focus” or that the “fact[s] receded in memory or awareness,” a dubious and not very credible justification. That “lost focus” and memory problem caused the DOJ attorneys to “effectively” mislead the plaintiff states and “misdirect” the court.
Hanen especially rebukes DOJ attorneys for claiming that the president’s immigration amnesty plan that included three-year deferrals was not being implemented — when, in fact, they knew it was being implemented to the tune of over 100,000 aliens. As Hanen writes:
Apparently, lawyers, somewhere in the halls of the Justice Department whose identities are unknown to this Court, decided unilaterally that the conduct of the DHS in granting three-year DACA renewals… was immaterial and irrelevant to this lawsuit and that the DOJ could therefore just ignore it. Then, for whatever reason, the Justice Department trial lawyers appearing in this Court chose not to tell the truth about this DHS activity. The first decision was certainly unsupportable, but the subsequent decision to hide it from the Court was unethical.
Hanen lists the specific statements made by DOJ lawyers in court and on conference calls that were outright lies, and then he lists all of the applicable ethics rules that the DOJ lawyers violated. Those misleading statements put “to rest any doubt regarding misconduct.” Hanen said the representations were made in “bad faith” by DOJ lawyers and breached Federal Rule of Civil Procedure 11(b), which makes such conduct sanctionable.
The ethics and conduct rules require a lawyer to “(1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled.” According to Hanen, the “Government’s lawyers failed on all three fronts” because their behavior was “intentionally deceptive.” In fact, said Hanen, “it is hard to imagine a more serious, more calculated plan of unethical conduct.”
Hanen cited another movie, the 1947 version of Miracle on 34th Street, to illustrate the deceptive practices of the DOJ lawyers. Thomas Mara Jr., the schoolboy son of the New York prosecutor, is put on the stand as a witness and asked if he knows the difference between telling the truth and telling a lie. Tommy says, “Gosh, everybody knows you shouldn’t tell a lie, especially in court.” According to Judge Hanen, “the need to tell the truth, especially in court, was obvious to a fictional young Tommy Mara Jr. in 1947, yet there are certain attorneys in the Justice Department who apparently have not received that message, or more likely have just decided they are above such trivial concepts.”
Although he could have done so, Hanen decided not to strike the government’s pleadings (and thus its defense) in this lawsuit, even though the government’s “egregious conduct merits it” because of the “national importance of the outcome of this litigation.” Doing so would also be “unfair, and perhaps even disrespectful, to the Supreme Court.” He could also have awarded attorneys’ fees against the government and its DOJ attorneys. However, those fees would simply “be paid by taxpayers of the United States.” Thus, the Justice Department “would go unscathed.” There would be “no corrective effect and no motivation for the Government’s lawyers to act more appropriately in the future” because “there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department.”
So instead, Hanen ordered the Obama administration to take a series of steps:
- Provide the court with a list of all of the aliens who were given benefits under the Obama amnesty plan;
- All DOJ attorneys stationed in Washington, D.C., who appear in the courts of any of the 26 states that filed this lawsuit must take a yearly ethics course taught by someone unaffiliated with DOJ — and the attorney general must file an annual report with Judge Hanen for five years listing all of the DOJ attorneys who have appeared in those 26 states certifying their attendance at this ethics course;
- Attorney General Loretta Lynch must file a comprehensive plan within 60 days “to prevent this unethical conduct from ever occurring again.” She must ensure that “Justice Department trial lawyers tell the truth — the entire truth”; and
- Because he believes that whatever the Office of Professional Responsibility at DOJ is doing “has not been effective,” Hanen ordered Lynch to inform him within 60 days of the steps she is taking to “ensure” that OPR “effectively polices the conduct of the Justice Department lawyers and appropriately disciplines those whose actions fall below the standards that the American people rightfully expect from their Department of Justice.”
Finally, Hanen said that the court “does not have the power to disbar the counsel in this case, but it does have the power to revoke the pro hac vice status of out-of-state lawyers who act unethically in court.” Pro hac vice refers to lawyers’ getting permission to appear in a particular court even though they are not licensed in that state. Hanen issued a separate, sealed order barring the DOJ lawyers in this case from appearing in his courtroom again. It seems clear from Hanen’s statement that if he had the power to disbar the DOJ lawyers who were involved in this case, he would likely have done so. They obviously dodged a bullet.
In a final dig at the former attorney general, Eric Holder, Hanen pointed out that none of the misconduct in this case “occurred during the tenure of the current Attorney General.” Hanen “cannot but hope that the new Attorney General, being a former United States Attorney, would also believe strongly that it is the duty of DOJ attorneys to act honestly in all of their dealings with a court, with opposing counsel and with the American people.”
The Justice Department, say Hanen, “purports to represent all Americans — not just those who are in favor of whatever actions the Department is seeking to prosecute or defend. The end result never justifies misconduct.”