Judge in Obama Amnesty Case: Conduct of DOJ Not Worthy of Word ‘Justice’

AP Photo/Pablo Martinez Monsivais
AP Photo/Pablo Martinez Monsivais

The Texas federal district court judge over the executive amnesty case slammed U.S. Department of Justice (DOJ) officials on Thursday writing that their “conduct is certainly not worthy of any department whose name includes the word ‘Justice.'”

Judge Andrew Hanen, a federal district court judge in Brownsville, Texas, added, “Suffice it to say, the citizens of all fifty states, their counsel, the affected aliens and the judiciary all deserve better.” He opined that the DOJ “purports to represent all Americans — not just those who are in favor of whatever actions the Department is seeking to prosecute or defend. The end result never justifies misconduct.”

On Thursday, the judge issued the 28-page memorandum opinion and order (attached below) and lambasted federal government officials for misleading the Court during the executive amnesty litigation.

The Judge issued an order that the federal government misled the Court and the plaintiff states in the amnesty case about when it would begin to implement the DAPA program and would amend the DACA program. The Court ordered the government to file by June 10th, a list of every individual, their names and addresses, of those who were granted these benefits.

Judge Hanen did not mince words and noted “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.” He added, “To that end, this Court neither takes joy nor finds satisfaction in the issuance of this Order.”

He noted that the DOJ “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 provided only the explanation that its lawyers “lost focus” or that the “fact[s] receded in memory or awareness.”

Hanen said that the misrepresentations were made on “multiple occasions” and that the lawyers engaged in this behavior “starting with the very first hearing this Court held.”

Under a section entitled, “The Misconduct Involving the Implementation of the 2014 DHS Directive,” Judge Hanen writes:

In summary, this Court and opposing counsel were misled both in writing and in open court on multiple occasions as to when the Defendants would begin to implement the Secretary’s 2014 DHS Directive establishing the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program and amending the DACA program. Opposing counsel and this Court were assured that no action would be taken implementing the 2014 DHS Directive until February 18, 2015. Counsel for the Government made these assurances on the record on December 19, 2014, and in open court on January 15, 2015. Similar misrepresentations were made in pleadings filed on January 14, 2015, [Doc. No. 90 at 3] and even after the injunction issued, on February 23, 2015. [Doc. No. 150]. For example, on February 23, 2015, the Government lawyers wrote that: “DHS was to begin accepting requests for modified DACA on February 18, 2015.” [Doc. No. 150 at 7]. This representation was made despite the fact that in actuality the DHS had already granted or renewed over 100,000 modified DACA applications using the 2014 DHS Directive.

Thus, the lawyers for the federal government, orally on the record, and in writing in pleadings filed with the Court in the case, deceived Judge Hanen and the lawyers on the other side of the case. Specifically, they lied about when and if the government was implementing the executive amnesty order. Government lawyers said the program would not be implemented until February 18, 2015 but the federal government gave 100,000 illegal aliens temporary lawful status.

The judge writes, “Now, however, having studied the Government’s filings in this case, its admissions make one conclusion indisputably clear: 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 judge set out the misrepresentations verbatim and includes the dates they occurred. He chastises and appears to warn them when he writes that “The Rulebook” which guides their behavior is the “Rules of Discipline” that apply to lawyers. He cites the Disciplinary Rules by number, including the rules for “Candor Toward the Tribunal,” “Truthfulness in Statements to Others,” and the rule for “Misconduct” which would include a violation for candor and truthfulness. He concludes that the Government’s conduct has violated the rules governing lawyers.

In deciding what to do about the misconduct, Judge Hanen writes, “There is no doubt, however, that because the Government’s counsel breached the most basic ethical tenets, the Plaintiff States have been damaged and have given up a valuable legal right. The Government’s “intentionally deceptive” conduct caused the Plaintiff States to not seek an order from the Court preventing the Government from giving illegal aliens these extended benefits. Moreover, counsel for the Government should not be rewarded for their past misconduct.”

The Judge declined to strike the pleadings of the Government because he said the issues in the executive amnesty case needed to be litigated. He also wrote that sanctioning the Government with monetary sanctions would only hurt the taxpayer, and taxpayers have had to pay enough during this litigation. However, the Judge ordered every single lawyer employed at the Justice Department in Washington, D.C., who appears in the courts of any of the 26 aggrieved plaintiff states, to attend a legal ethics course annually. Attorney General Loretta Lynch was ordered to file an annual report for five years listing the attorneys who took the course.

Hanen ordered Lynch to file a comprehensive plan “to prevent this unethical conduct from ever occurring again.” He added, Lynch must make sure that “Justice Department trial lawyers tell the truth — the entire truth.”

Judge Hanen wrote that he “does not have the power to disbar the counsel in this case,” but in a sealed order, barred the DOJ lawyers who had appeared in his court from ever appearing before his Court again.

The Court took the effort and “notes that to its knowledge none of the acts cited in this or prior orders were committed by attorneys from the United States Attorney’s Office in the Southern District of Texas. To date, without exception, these attorneys have acted and continue to act, in this Court’s experience, with honor, professionalism and forthrightness.”

Judge Hanen gave the government until June 10 to comply with the following Order:

This Court hereby orders the Government to file a list of each of the individuals in each of the Plaintiff States given benefits (and whose benefits have not been withdrawn) under the 2014 DHS Directive contrary to its lawyers’ multiple representations. These are the individuals granted benefits during the period (November 20, 2014‒March 3, 2015) in which the attorneys for the Justice Department promised that no benefits were being conferred. This list should include all personal identifiers and locators including names, addresses, “A” file numbers and all available contact information, together with the date the three-year renewal or approval was granted. This list shall be separated by individual Plaintiff State. It should be filed in a sealed fashion. 

The judge wrote that while the list of beneficiaries of the Government’s action would remain sealed, the Plaintiff States would be able to access them if there was a “showing by a state of actual or imminent damage that could be minimized or prevented by release of the information to one of the Plaintiff States.”

Texas Attorney General Ken Paxton, who is leading the 26-state coalition in the litigation, responded to the Judges’ Order saying, “Throughout this case, the administration has struggled to provide accurate, reliable information regarding the scope of the President’s plan or even when it would be implemented. From the start, our lawsuit has been about asserting that one person cannot unilaterally change the law, and part of that is ensuring everyone abides by the rule of law.”

Lana Shadwick is a writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2

Judge Andrew Hanen Order in Executive Amnesty Suit