(CNSNews.com) – U.S. District Judge Andrew Hanen strongly rebuked Department of Justice (DOJ) attorneys last week for being “intentionally deceptive” during a controversial amnesty case heard in his Brownsville, Texas courtroom.
“The Department of Justice has now admitted making statements that clearly did not match the facts,” Hanen stated in his May 19 order. “It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements….
“These misrepresentations were made on multiple occasions starting with the very first hearing this Court held,” he continued. “This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed.”
On Dec. 3, 2014, Texas and 25 other states asked Hanen for a preliminary injunction blocking Obama administration executive actions on immigration, which sought to confer “lawful presence” on more than 4.3 million illegal aliens who applied under the Department of Homeland Security’s (DHS) Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action on Childhood Arrivals (DACA) programs without congressional approval.
According to court records, DOJ lawyers assured Hanen in January 2015 that “no action would be taken on any of those applications”. But “at the very time counsel told the Court and opposing counsel that no action was taking place, over 100,000 three-year deferred action renewals were being processed using the 2014 DHS Directive,” Hanen wrote.
“Whether it was one person or one hundred thousand persons, the magnitude does not change a lawyer’s ethical obligations... (1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled,” the judged noted. “The Government’s lawyers failed on all three fronts.”
“Counsel’s conduct in this case was not only unethical, but a failure to comply with federal law,” he added.
Hanen ordered 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” for the next five years.
He further instructed Attorney General Loretta Lynch to come up with “a comprehensive plan to prevent this unethical conduct from ever occurring again.”
“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 [“this time only”] status of out-of-state lawyers who act unethically in court. By a separate sealed order that it is simultaneously issuing, that is being done,” Hanen continued.
In a May 20 statement, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) said that the behavior of DOJ lawyers “threatens to create a crisis of confidence” in the Justice Department.
“Unfortunately, I know what it’s like to be misled by false information from Justice Department lawyers. Now, to be caught intentionally lying to a federal court on another high profile and serious matter threatens to create a crisis of confidence in the integrity of the Justice Department…
“Attorney General Lynch must address what the judge said was ‘unethical conduct’ and put an end to the dishonesty in the halls of the Justice Department,” Grassley added.
“The Department of Justice lawyers had trouble being truthful and candid to the judge,” Ronald Rotunda, a law professor at Chapman University’s Dale E. Fowler School of Law and a member of The Federalist Society for Law and Public Policy Studies, told CNSNews.com. “What [they] have done is mind-boggling. I am as surprised as the judge is.”
“It’s a very serious violation, if it is as [Hanen] finds it,” agreed former deputy assistant attorney general Shannen Coffin, now a partner at the Washington law firm Steptoe and Johnson and also a Federalist Society member.
“You’ll see a judge get a bee in his bonnet every now and then, and a judge does have pretty broad authority to control the lawyers in front of him,” Coffin told CNSNews. “Now, whether or not he has the authority to control the entire Department of Justice as he has attempted to do, it presents a much more difficult question.
“There’s going to be some serious issues as to whether the judge has overstepped, not necessarily in finding that the DOJ lawyers violated their duties to him, but in the remedy that he ordered.”
The U.S. Supreme Court heard oral arguments on the case on April 18. Coffin said that “depending on what the Supreme Court does,” it could be remanded back to Hanen’s court.
“If he does what he is talking about, there’s going to have to be a whole new legal team on this case,” Coffin pointed out.
“Any time you’re subject to attorney discipline for ethical breaches, it’s a very serious matter, and so personally for all the lawyers involved, it’s something they’re going to have to pay a great deal of attention to.
“There are a lot of people I know that are involved in this case who worked for me at DOJ who are very competent professional lawyers. It’s a serious conundrum they are in personally, and I by no means take pleasure out of this sort of order being issued,” he said.
“The Supreme Court could just decide this case and it’d be over. If they send it back, though, it would certainly disrupt the continuity of the litigation for the Justice Department, but they have a lot of lawyers there who are very experienced and haven’t had a role in this case who could step in,” Coffin said.
“It’s obviously an extraordinary order,” University of Pittsburgh law professor Arthur Hellman told CNSNews. “Judges do from time to time criticize lawyers, sometimes in pretty severe terms. But to accuse lawyers of dishonesty in this way is pretty unusual.
“And I think there are really two separate questions: One is whether the Justice Dept. attorneys deserved the severe criticism that he levied against them, and you’d have to look at the record for that.
“But the other question is whether [Hanen] has authority to require lawyers who were not practicing in his court to do anything, let alone the extensive program of ethics training that he wants them to do. I think it’s very doubtful that he has authority over lawyers who are not either admitted to practice in his court, or appearing in that particular case.”
Hellman noted that in the past, judges “have ordered U.S. federal lawyers to take legal training, but they themselves have sometimes gotten into trouble and subjected to misconduct proceedings for going too far. So this whole area is one that raises all sorts of knotty questions, and the courts and judicial councils could be tied up with this for a couple of years.”