And in a second order, an obviously infuriated Judge Hanen said that the “attorneys for the Government misrepresented the facts” to the court.
Judge Hanen issued his injunction on Feb. 16 in the lawsuit filed by 26 states in a Texas federal court. On Feb. 23, the Justice Department filed a motion asking Hanen to stay his injunction pending an appeal to the Fifth Circuit Court of Appeals. On March 3, the Justice Department filed an “Advisory” with Hanen, informing him that between Nov. 20, when the president announced his new plan, and Feb. 16, when the injunction was issued, the Department of Homeland Security had begun implementing part of the president’s plan by issuing three-year deferrals to over 100,000 illegal aliens.
Justice Department Had Said Obama’s Immigration Plan Hadn’t Been Implemented
This despite the fact that the Justice Department had assured Judge Hanen on numerous occasions–both in court and in written pleadings–that no part of the president’s plan would be implemented until late February. In the Advisory, the Justice Department did not admit it had misled the court; it was just trying to clear up any “confusion” that might have occurred.
Judge Hanen obviously saw things differently.
In Tuesday night’s order on the injunction, Hanen said that he remained “convinced” that his original findings and rulings were correct and that for a number of reasons, “the decisions reached previously by this Court have been reinforced.”
For example, Hanen had based his injunction in part on the “abdication” by the administration of its duty to enforce federal immigration law. Hanen pointed out that “recent actions taken by the Government confirm that it has abdicated enforcement.”
One of those actions cited by Hanen was Obama’s reaction at a town hall meeting held after the injunction was issued to an individual upset over a deportation order. Obama said that any Border Patrol agents or Immigration and Customs Enforcement officials who didn’t follow his new immigration plan that halts deportations against those who qualify under his new plan would be punished: if “they don’t follow the policy, there are going to be consequences to it.”
In summary, “the chief Executive has ordered that the laws requiring removal of illegal immigrants that conflict with [the president’s plan] are not to be enforced, and that anyone who attempts to do so will be punished.”
Hanen also dismissed the government’s claim that it would suffer irreparable harm if the injunction is not lifted. He concluded that “there is no pressing, emergent need for this program” and “the scales of justice greatly favor the States.”
Justice Department Lawyers Showed ‘Distinct Lack of Candor’
In the second order over the Advisory filed with the court, Judge Hanen presented a scathing analysis of the Justice Department’s misbehavior in misleading him over the implementation of the president’s amnesty plan:
"This Court expects all parties, including the Government of the United States, to act in a forthright manner and not hide behind deceptive representations and half-truths. That is why , whatever the motive for the Government’s actions in this matter, the Court is extremely troubled by the multiple representations made by the Government’s counsel – both in writing and orally – that no action would be taken … until February 18, 2015."
Hanen said the representations made by the Justice Department lawyers “indicates a distinct lack of candor.”
The Justice Department lawyers may even be in trouble for their delay in telling Hanen about this problem: “the explanation by Defendants’ counsel for their conduct after the fact is even more troublesome for the Court.”
The Department told Hanen they were unaware there was a problem until they read his Feb. 16 injunction order, and that they then took “prompt” remedial action to inform the court, but Hanen said that “assertion is belied by the facts.” The Advisory was not filed until March 3, so for two weeks after the Feb. 16 injunction order, “the Government did nothing to inform the Court of the 108,081” deferrals that had been issued.
Instead, on Feb. 23, the government filed its “Motion to Stay” the injunction with Hanen, saying absolutely nothing in that motion about this problem. Instead, “mysteriously, what was included” in the Justice Department’s motion was a request that Hanen issue a decision by Feb. 25, within two days:
"If this Court had ruled according to the Government’s requested schedule, it would have ruled without the Court or the States knowing that the Government had granted 108,081 applications … despite its multiple representations to the contrary … Yet they stood silent. Even worse, they urged this Court to rule before disclosing that the Government had already issued 108,081 three-year renewals … despite their statement to the contrary."
Hanen goes after the Justice Department lawyers even harder, especially their claims that they acted “promptly” to clear up any “confusion” they may have caused: “But the facts clearly show these statements to be disingenuous. The Government did anything but act ‘promptly’ to clarify the Government-created ‘confusion.’”
Judge: Justice Department Lawyers Didn’t Follow Professional Ethics
Hanen cites Section 3.3 of the American Bar Association Model Rules of Professional Conduct and the corresponding section of the Texas Rules, which require complete candor by a lawyer in his or her dealings with a court:
"Fabrications, misstatements, half-truths, artful omissions, and the failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life; but in the courtroom, when an attorney knows that both the Court and the other side are relying on complete frankness, such conduct is unacceptable."
Because of the government’s misconduct, Judge Hanen considered striking their pleadings, and indicated that “under different circumstances,” he might “very well do so.” But he didn’t because, he said, that would effectively end the case.
Because the issues at stake “have national significance and deserve to be fully considered on the merits,” Hanen concluded that “the ends of justice would not be served by striking pleadings in this case.” He warned the Justice Department, though, that his decision “does not bar such a sanction in the future should the facts and law warrant that action” and that his decision does not leave him “impotent to fashion an appropriate remedy” for the government’s misconduct.
In addition to granting the states’ request for early discovery, Hanen ordered the Justice Department to produce “any and all drafts of the March 3, 2015 Advisory” including all “metadata and all other tangible items that indicate when each draft of the document was written and/or edited or revised” as well as the names of any person who knew about the Advisory or the Department of Homeland Security activity, or reviewed it, and the date that occurred. He ordered that no documents, emails, computer records, hard drives or servers that have any information about this Advisory be “destroyed or erased.” And he gave the Justice Department only until April 21 to supply all of this information.
That is a tall order, but Judge Hanen is clearly determined to find out who knew about this deception, and may well consider personally sanctioning those lawyers or other officials who were involved once he gets that information.
This is another big loss for the government and gives the states the ability to question the credibility of the government in the appeal now pending. The Justice Department will go into the upcoming hearing before the Fifth Circuit with what the legal profession calls “unclean hands,” which is when lawyers engage in professional and ethical misconduct. That certainly will not help the government win its case.
Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative.
Editor's Note: This piece was originally published by The Heritage Foundation.