In a stunning rebuke to the Department of Justice Thursday, U.S. District Judge Andrew Hanen ordered annual ethics classes for the DOJ attorneys who were “intentionally deceptive” during the course of executive amnesty litigation. At issue was whether the DOJ intentionally misled the judge into believing that Obama’s DACA amnesty program would be halted until he made a ruling on a lawsuit brought by 26 states.
From November of 2014 until February of 2015, while the judge was still deciding the case, the Department of Homeland Security gave more than 108,000 illegal immigrants three-year reprieves. They did this after DOJ lawyers led him to believe that they would halt the program during that period. The 26 states who filed a lawsuit were thus misled into “foregoing a request for a temporary restraining order,” Hanen wrote in his blistering decision. “Such conduct is certainly not worthy of any department whose name includes the word ‘Justice.'”
The facts of the deception are not in doubt, Hanen emphasized. “[DOJ] has now admitted making statements that clearly did not match the facts,” he said in the May 19 opinion, first noted by the National Law Journal. “It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements … This court would be remiss if it left such unseemly and unprofessional conduct unaddressed.”
As punishment, Justice Department attorneys who wish to appear in any state or federal court within the 26 states that brought the lawsuit have to undergo annual ethics training. “At a minimum, this course (or courses) shall total at least three hours of ethics training per year,” he wrote.
In another case, such “egregious conduct” would lead him to strike the government’s pleadings, but Hanen decided not to take that step because the Supreme Court heard oral arguments in the case in April.
“The national importance of the outcome of this litigation outweighs the benefits to be gained by implementing the ultimate sanction,” Hanen wrote. “Striking the government’s pleadings would not only be unfair to the litigants, but also unfair, and perhaps even disrespectful, to the Supreme Court as it would deprive that Court of the ability to thrash out the legal issues in this case.”
Hanen cited multiple instances in which Justice Department attorneys claimed that Department of Homeland Security directive announced in November of 2014 would not be implemented until February 18, 2015, even though they knew that DHS had begun implementing a portion of the order that pertained to the original “deferred action for childhood arrivals” policy announced in 2012.
Justice Department attorney Kathleen Hartnett told Judge Hanen during a January 2015 hearing that nothing would be happening with regard to DACA until Feb. 18, 2015. On Feb. 16, 2015, Hanen sided with the states and issued a preliminary injunction blocking Obama’s actions. Then he found out that the reprieves and work permits had been continuing all along.
That March, the exasperated judge chastised Hartnett for lying to him in January. “Like the judge, the states thought nothing was happening,” Hanen said. “Like an idiot, I believed that”:
A flustered Hartnett repeatedly apologized to Hanen for any confusion related to how the reprieves and work permits were granted.
“We strive to be as candid as possible. It truly became clear to us there was confusion on this point,” she said.
Hanen seemed genuinely disappointed that he could not disbar the DOJ attorneys who lied to him, but he did ban them from practicing law in Texas:
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. By a separate sealed order that it is simultaneously issuing, that is being done.
In the meantime, perhaps the court-ordered ethics classes will help the “confused” lawyers understand the concept of “justice” a little better.