DOJ Says Judge Can't Order Its Lying Lawyers To Attend Ethics Classes

Legal Issues

from the or-do-anything-to-punish-it-for-its-unethical-behavior,-apparently dept

Federal judge Andrew Hanen recently benchslapped the DOJ for lying about the central element in an ongoing lawsuit between twenty-six states and the US government over changes to immigration policies. The strongly-worded order (which, despite its accusations, never once used the word “lie”) chastised DOJ lawyers for hiding information about the processing of certain immigrants — something that happened over 100,000 times even as (a) the DOJ said no such processing would take place until February 2015, and (b) the states had obtained a temporary restraining order against this processing until the courts could sort it out.

The Court issued the temporary injunction on February 16, 2015. The timing of this ruling was clearly made based upon the representations that no action would be taken by Defendants until February 18, 2015. If Plaintiffs’ counsel had known that the Government was surreptitiously acting, the Plaintiff States could have, and would have according to their representations, sought a temporary restraining order pursuant to Federal Rule of Civil Procedure 65(b) much earlier in the process. […] Due to the Government’s wrongful misstatements, the Plaintiff States never got that opportunity. The misrepresentations of the Government’s attorneys were material and directly caused the Plaintiff States to forgo a valuable legal right to seek more immediate relief.

Judge Hanen had limited weaponry at his disposal to punish the DOJ for its lies. The case was awaiting a Supreme Court review and Hanen’s work was pretty much done. All he could do was issue an order demanding the DOJ work on its broken ethics. Hanen ordered all DOJ lawyers who might appear in court to attend mandatory ethics training and documentation confirming attendance passed on to him. This order had the potential to affect the DOJ’s entire staff of lawyers, seeing as it was fighting a legal battle on 26 fronts.

The DOJ has responded to this order. It’s not happy Judge Hanen has ordered it to clean up its own house. In its response [PDF], it claims the court has no power to order its legal staff to attend ethics classes… or to do anything, apparently. (via the Volokh Conspiracy)

The sanctions ordered by the Court far exceed the bounds of appropriate remedies for what this Court concluded were intentional misrepresentations, a conclusion that was reached without proper procedural protections and that lacks sufficient evidentiary support. Compounding matters, the sanctions imposed by this Court exceed the scope of its authority and unjustifiably impose irreparable injury on the Department of Justice, the Department of Homeland Security (DHS), and thousands of innocent third parties.

It’s actually a two-prong argument — one that the DOJ will be taking to the Appeals Court. One: the court can’t issue this sort of order. Two: the DOJ did nothing wrong.

[T]he Government is likely to prevail on appeal, because (1) the Court’s finding of bad-faith misrepresentations is not supported by the evidence, and certainly not by clear and convincing evidence, as required; (2) the Court imposed sanctions without observing required procedural protections; and (3) the sanctions imposed place onerous administrative obligations on DHS that are unjustified by any demonstrated remedial purpose; impermissibly encroach on the Attorney General’s authority to supervise the conduct of litigation involving the United States; and improperly seek to regulate the conduct of and standards for appearance by Department of Justice attorneys before other state and federal courts in twenty-six States.

The DOJ believes that if it did do something wrong, it’s up to the DOJ to decide how it’s handled, or if it even should be addressed at all. The DOJ also shows a sudden (and very temporary) concern for the poor taxpayers.

The expenditures of money and manpower that the order requires of the Department of Justice are also significant. The estimated cost to the Department (and in turn, to the American taxpayer) in terms of direct expenditures and lost productivity would be between approximately $1 million and $1.5 million this year alone. See Lofthus Decl. ¶ 10. The costs over five years could total nearly $8 million. See id.; see also id. ¶¶ 11-20. These losses of taxpayer funds and productivity can never be recouped.

This is the DOJ complaining about rerouting less than $2 million of its $25-30 billion budget, which is like complaining about being told how to spend 8 cents of a $1000 windfall.

Nowhere in its response does the DOJ suggest what might be an appropriate remedy. Certainly, it’s not obligated to provide the courts with suggestions for sanctions, but its filing implies the courts are simply supposed to let widespread “misrepresentation” go unpunished, if not unnoticed. The DOJ can police itself, its lawyers assert, while providing no examples of how it has done so in the past.

The DOJ claims its misrepresentations were not of the “bad faith” variety, suggesting the court should do little more than tell it to do better next time. But it’s difficult to see how telling plaintiffs and the court that no immigrants were being processed under guidelines central to litigation involving 26 states is the same thing — or nearly the same thing — as having knowledge that 100,000 immigrants had already been processed prior to the restraining order’s issuance.

Filed Under: andrew hanen, doj, ethics, lying