A federal court just issued the most scorching smackdown of the Obama Administration’s Department of Justice (DOJ) I have ever seen.
Any time a federal judge calls the lawyers for a party “intentionally deceptive,” “unethical,” and accuses them of having “clearly misled both counsel for the Plaintiff States and the Court,” it’s worth taking notice. But when it’s done against the federal government’s lawyers (the Obama Administration’s lawyers) over the course of 28 searing pages of judicial excoriation, it is epic.
A few weeks ago I told you about the Sixth Circuit Court of Appeals’ blistering takedown of the IRS and DOJ over the targeting of conservatives. It was awe-inspiring and rightly deserved. This new order from a federal district court in Texas takes it to the next level. It is by far the most scorching judicial repudiation of “intentionally deceptive,” “bad faith,” and “unethical” actions on the part of the federal government in this Administration.
More importantly, the court went further than a mere scolding, this order has serious teeth behind it, imposing six substantial and concrete penalties on the Obama Administration’s DOJ.
It literally reads as if this court were taking the DOJ out behind the woodshed, and for good reason.
To make it even better, it opens with this scene from the movie Bridge of Spies, correctly noting that it “exemplifies what this case is, and has been, about”:
FBI Agent Hoffman: Don’t go Boy Scout on me. We don’t have a rulebook here.
Attorney James Donovan: You’re Agent Hoffman, yeah?
FBI Agent Hoffman: Yeah.
Attorney James Donovan: German extraction?
FBI Agent Hoffman: Yeah, so?
Attorney James Donovan: My name’s Donovan, Irish, both sides, mother and father. I’m Irish, you’re German, but what makes us both Americans? Just one thing . . . the rulebook.
We call it the Constitution and we agree to the rules and that’s what makes us Americans. It’s all that makes us Americans, so don’t tell me there’s no rulebook . . . .
The case concerns how the Obama Administration ignored the “rulebook” – the Constitution – in making its lawless Executive action on immigration, “chang[ing] the law” to grant legal status to four million illegal aliens. (This became known as the DHS directive.) The decision in that case is currently in the hands of the U.S. Supreme Court, but this order concerns the fact that the Obama Administration’s lawyers “knowingly” made “multiple misrepresentations” to the federal district court that the Administration’s scheme had not gone into effect. In fact, the Administration was “surreptitiously acting,” implementing the DHS directive in over 100,000 instances.
The court did not mince words in excoriating the Administration, the lawyers involved, and “unknown” leadership within the DOJ who authorized or failed to correct the intentional misleading of the court.
The entire opinion is a must read, but here are just a few snippets of the brilliant and at times breathtaking order:
Whether it be the Constitution or statutory law, this entire case, at least in this Court, has been about allegiance to the rulebook. . . . [T]he resolution of whether the Executive Branch can ignore and/or act contrary to existing law or whether it must play by the rulebook now rests entirely with [the Supreme] Court.
What remains before this Court is the question of whether the Government’s lawyers must play by the rules. In other words, the propriety of the Defendants’ actions now lies with the Supreme Court, but the question of how to deal with the conduct, or misconduct, of their counsel rests with this Court.
And then it begins:
[T]his Court neither takes joy nor finds satisfaction in the issuance of this Order. To the contrary, this Court is disappointed that it has to address the subject of lawyer behavior when it has many more pressing matters on its docket. It is, at best, a distraction, and there is nothing “best” about the conduct in this case. 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. The DOJ’s only explanation has been that its lawyers either “lost focus” or that the “fact[s] receded in memory or awareness.” These misrepresentations were made on multiple occasions starting with the very first hearing this Court held. This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed.
After addressing the immense “damage” that the misrepresentations had on the 26 states challenging the DHS directive and detailing line-by-line the assurances made by the Obama Administration in open court, the court reached the unmistakable conclusion that “the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.”
The court chided:
Apparently, lawyers, somewhere in the halls of the Justice Department whose identities are unknown to this Court, decided unilaterally that the conduct of the DHS [implementing the Administration’s directive on over 100,000 occasions] was immaterial and irrelevant to this lawsuit and that the DOJ could therefore just ignore it. Then, for whatever reason, the Justice Department trial lawyers appearing in this Court chose not to tell the truth about this DHS activity. The first decision was certainly unsupportable, but the subsequent decision to hide it from the Court was unethical.
Such conduct is certainly not worthy of any department whose name includes the word “Justice.
The court then specifically referenced the Sixth Circuit’s opinion, as I did previously, calling in to question whether the Department of Justice is in fact doing “justice”.
The court then details the Administration’s “December 2014 Misrepresentations”:
The response by a DOJ lawyer, who the Government concedes knew that the DHS was already [implementing the] directive, was: “I really would not expect anything between now and the date of the hearing.” How the Government can categorize the granting of over 100,000 applications as not being “anything” is beyond comprehension. . . .
This was not a curve ball thrown by the Government; this was a spitball which neither the Plaintiff States nor the Court would learn of until March 3, 2015.
The order continues detailing numerous instances of the Obama Administration’s lawyers not telling the truth and then failing to inform the court about these misrepresentations.
The court declared in no uncertain terms:
The duties of a Government lawyer, and in fact of any lawyer, are threefold: (1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled. The Government’s lawyers failed on all three fronts. . . . The failure of counsel to do that constituted more than mere inadvertent omissions—it was intentionally deceptive.
The court restated numerous rules of professional responsibility requiring lawyers to tell the truth and have complete candor with the court, concluding:
[The Obama Administration’s attorneys] in this case violated virtually every interpretation of candor. The failure of counsel to inform the counsel for the Plaintiff States and the Court of the DHS activity—activity the Justice Department admittedly knew about—was clearly unethical and clearly misled both counsel for the Plaintiff States and the Court. . . .
Counsel’s conduct in this case was not only unethical, but a failure to comply with federal law. . . .
[T]he 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.
The Court goes beyond merely targeting lowly DOJ attorneys with its invective, but directs its disapprobation at the Obama Administration’s actions:
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. 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.
Then came the most stinging line in the entire order: “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.”
In concluding its analysis, the court stated, “Candor in court is such a self-evident concept that it is almost too mundane to discuss in an opinion.” It exemplified this point with the following exchange “from the beloved movie Miracle on 34th Street when the young child of the assistant district attorney is called to the witness stand:”
“Mr. Gailey (Attorney for Mr. Kringle): Will Thomas Mara please take the stand?
Thomas Mara Sr. (Assistant District Attorney): Who, me?
Mr. Gailey: Thomas Mara Jr.
Tommy Mara Jr.: Hello, Daddy.
Mr. Gailey: Here you are, Tommy.
The Judge: Tommy, you know the difference between telling the truth and telling a lie, don’t you?
Tommy Mara Jr.: Gosh, everybody knows you shouldn’t tell a lie, especially in court.
The Judge: Proceed, Mr. Gailey.”
The need to tell the truth, especially in court, was obvious to a fictional young Tommy Mara Jr. in 1947, yet there are certain attorneys in the Justice Department who apparently have not received that message, or more likely have just decided they are above such trivial concepts. Regardless of the motivation behind the conduct, multiple misrepresentations over a period of months both in pleadings and in open court cannot be ignored . . . .
And ignore it the court did not. The court went far beyond cutting rhetoric and imposed six serious and concrete penalties:
- Banning Some DOJ attorneys from appearing in that federal district court. The court noted that it “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 [DC-based DOJ attorneys] who act unethically in court. . . . [T]hat is being done.”
- Ordering the Obama Administration to file a list of the 100,000 individuals granted legal status in direct violation of its order in each state. The court is going to hold this list pending final determination of the case by the Supreme Court and “may release” the list to the states so they can avoid further harm caused by the Administration’s “wrongful misstatements.”
- Mandating that every DOJ attorney (not just those involved in this case) that practices in any of the 26 states involved in this litigation undergo mandatory ethics training. The court stated, “Clearly, there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department.” The court “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.”
- Requiring the Attorney General to appoint someone to “ensure compliance” with the order and report yearly to the court for five years.
- Commanding the Attorney General to “report to this court in sixty (60) days with a comprehensive plan to prevent this unethical conduct from ever occurring again.” The court stated that the decision not to tell the court the truth was “clearly unreasonable,” but that the “conduct of the lawyers who then covered up this decision was even worse.” The court’s order is aimed at holding the Attorney General accountable for ensuring that “the Justice Department trial lawyers tell the truth—the entire truth—. . . to the court.”
- Directing the Attorney General to report to the court within 60 days on “what steps she is taking to ensure that the [DOJ] Office of Professional Responsibility effectively polices the conduct of the Justice Department lawyers and appropriately disciplines those whose actions fall below the standards that the American people rightfully expect from their Department of Justice.” As the court poignantly noted, “[W]hatever it is that the Department of Justice Office of Professional Responsibility has been doing, it has not been effective.
The court also discussed imposing two very serious penalties that it found were merited by the Administration’s “egregious conduct,” but refrained from doing so because it would cause further harm. First, the court refrained from “striking the [Administration’s] pleadings” – one of the most severe penalties available to a court – because it would undercut the substantive case before the Supreme Court. As the court noted, the American people deserve an answer to this issue and the Obama Administration’s misconduct should not be allowed to prevent that.
Second, the court refrained from imposing attorneys’ fees and sanctions, noting that the citizens (taxpayers) of the 26 states harmed by the Obama Administration’s actions would be forced to foot the bill. The court found that such a remedy would do more harm to those who had already been harmed while doing little to “serve as a deterrent to any future misconduct, or act as a punishment” for the Obama Administration.
However, the order ends with a stern warning to the Attorney General:
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.
The Obama Administration has gotten away with deceiving the American people, Congress, and the courts for far too long. This order goes beyond anything that has been done before to hold this Administration accountable for its actions.
I have long said that litigation is the strongest way to hold the Administration accountable. The shenanigans the Obama Administration routinely employs before Congress and with the American people do not fly in federal court. Federal judges do not take misconduct lightly, and they have serious power at their disposal to mandate compliance with the law.
It looks like President Obama’s DOJ learned that the hard way this week. Now it’s time to continue to hold the Administration’s feet to the fire.