Federal judge lowers the boom on DoJ after "bad faith ... misrepresentations"

The federal judge hearing the challenge to Barack Obama’s executive actions on immigration threw the book at the Department of Justice yesterday in a rare show of judicial force, the National Law Journal’s Zoe Tillman reported. In an order that details material misrepresentations made by DoJ attorneys in his court, Judge Andrew Hanen has demanded a full list of illegal immigrants granted benefits in the lapsed time. Hanen then blocked DoJ attorneys from appearing in any court in the 26 states involved until they take an ethics course, and further demanded that Attorney General Loretta Lynch to report within 60 days about how she plans to correct the failures in the Office of Professional Responsibility:

Finding that Justice Department lawyers repeatedly misled the court about when the government would begin implementing new immigration directives, U.S. District Judge Andrew Hanen ordered any Washington-based Justice Department lawyer who wants to appear in any state or federal court in the 26 states that sued the administration to attend an annual legal ethics course.

Hanen also ordered Attorney General Loretta Lynch to present a “comprehensive plan” to the court within 60 days about how to prevent future “unethical conduct.” And he ordered Lynch to notify the court within 60 days about steps she was taking to ensure the Office of Professional Responsibility—the DOJ office that oversees attorney conduct—was effectively policing lawyers within the department.

“The United States Department of Justice … has now 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,” Hanen wrote. “This court would be remiss if it left such unseemly and unprofessional conduct unaddressed.”

Hanen’s order minced no words. He accuses government attorneys of a pattern of dishonest behavior and “bad faith,” and of deliberately deceiving the plaintiffs in the lawsuit in order to prevent an earlier request for a restraining order:

This Court has found no authority to support the concept that it is ever ethical and appropriate conduct to mislead a court and opposing counsel; nor has the Government provided any authority to that effect. That being the case, the Court finds no need for a comprehensive dissertation on the duty of candor and honesty because counsel in this case failed miserably at both. The Government’s lawyers in this case clearly violated their ethical duties.

To say that the Government acted contrary to its multiple assurances to this Court is, at best, an understatement. The Government knowingly acted contrary to its representations to this Court on over 100,000 occasions.11 This Court finds that the misrepresentations detailed above: (1) were false; (2) were made in bad faith; and (3) misled both the Court and the Plaintiff States.

Both the Court and the attorneys representing the Plaintiff States relied upon February 18, 2015, (the implementation day for the 2014 DHS Directive specified by the Government attorneys) as the controlling date. 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. Their clear intent until the Government misrepresented the facts during the December 19, 2014, conference call was to obtain a hearing before year’s end. 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. …

The misconduct in this case was intentional, serious and material. In fact, it is hard to imagine a more serious, more calculated plan of unethical conduct. There were over 100,000 instances of conduct contrary to counsel’s representations; such a sizable omission cannot be classified as immaterial.

Hanen then mulled over an appropriate remedy. Striking all of the government’s pleadings would suffice, but Hanen recognized the importance of this debate to the national interest and chose not to impede it. Awarding court costs to the plaintiffs for the injury would also be a legitimate option, but since taxpayers are already footing both sides of the bill, it doesn’t amount to a significant enough penalty.

Rather than that, Hanen ordered the government to provide a list of all 108,000+ people who were granted benefits because of the Obama administration’s misrepresentations, so that those benefits could be reversed if the White House loses at the Supreme Court. That addresses the material injury to the plaintiffs, but Hanen also demanded a remedy for the insult to the court as well. In order to litigate in any of the 26 states bringing the lawsuit — in either federal or state court — any DoJ attorney has to first take an ethics course, in a classroom, taught by someone outside of Justice:

Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course.15 It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction. The format of this continuing education shall be left to the independent expert lecturer. Self-study or online study will not comply with this Order, but attendance at a recognized, independently sponsored program shall suffice.

Lynch and any succeeding AGs will have to file an annual report with Hanen’s court detailing compliance in all 26 states — for the next five years. He also revoked the pro hac vice status of those attorneys who made the material misrepresentations (meaning that they cannot practice law unless admitted to the state bar in that jurisdiction) — and only did that, Hanen wrote, because he lacks the authority to disbar them outright. Hanen did take an opportunity to blame Eric Holder rather than Lynch for the sorry state of the Department of Justice:

Further, while the misconduct involved at least two or more attorneys from the Justice Department, to this Court’s knowledge, no acts occurred during the tenure of the current Attorney General. The Court cannot help 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.

How much of this will hold up if Justice appeals it? Maybe some, maybe none, or maybe all of it. Regardless, putting this on the record will make for a very embarrassing chapter in DoJ history. It also serves as a warning to the higher courts that will inevitably hear this case not to believe anything that the Department of Justice has to say in this case — and probably others as well.

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