A federal judge in Texas absolutely skewered the Justice Department on Thursday, ordering sanctions as a result of DOJ lawyers knowingly making multiple misrepresentations in a lawsuit over Obama’s 2014 immigration directive.
The judge said the DOJ lawyers hid from the Court the fact that the Department of Homeland Security started implementing the new directive immediately in November 2014, approving approximately 100,000 Deferred Action for Childhood Arrival (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) applications.
In November 2014, Obama announced his immigration executive actions that would have allowed an estimated 5 million undocumented immigrants to obtain work permits and avoid deportation. Twenty-six states led by Texas then joined together to challenge these actions as unconstitutional and filed a lawsuit that was heard by U.S. District Court Judge Andrew Hanen in Texas. In February 2015, Judge Hanen ruled in favor of the States and issued an order to block implementation of the actions. That ruling was appealed and the matter has worked its way up to the Supreme Court.
After Judge Hanen made his ruling, it came to light that DOJ attorneys, including Kathleen Hartnett, may have misled the Court and the States during the preliminary injunction hearing. The States asked the Court to sanction the DOJ lawyers and after more than a year, Judge Hanen issued those sanctions on Thursday.
At the outset, the judge noted that the underlying question of this lawsuit was whether the Obama Administration must follow the rules. Hanen said that it now appears that question will ultimately be answered by the Supreme Court with respect to the immigration issue. So, Hanen wrote the only matter left for him to decide in the case is how to deal with the misconduct of lawyers from Obama’s DOJ.
In the order, Hanen found DOJ attorneys misled the Court and opposing counsel on multiple occasions over a three month period as to when the Obama Administration would implement its new immigration directive. The DOJ lawyers said changes would not be implemented until February 18, 2015 when, in fact, the changes had already been implemented and “DHS had already granted or renewed over 100,000 modified DACA applications.” Judge Hanen found that the DOJ lawyers knew all of this, yet “chose not to tell the Plaintiff States or the Court.” (emphasis original). “The Government’s lawyers in this case clearly violated their ethical duties,” Judge Hanen wrote.
In deciding which sanctions to impose, Judge Hanen wrote the conduct of the DOJ lawyers was so egregious that he could strike their pleadings, but he chose not to do so.
Judge Hanen found the appropriate remedy was for the DOJ to provide the Court with a list by June 10, 2016 of all of the approximately 108,000 individuals in the Plaintiff States who prematurely received benefits under the new immigration edict. Judge Hanen will then keep a copy of the list, under seal, until the Supreme Court issues an opinion on the matters in the underlying lawsuit.
He also ensured that the out-of-state attorneys involved in this incident would not be practicing in Texas again any time soon.
“The Court does not have the power to disbar counsel in this case, but it does have the power to revoke the pro hac vice status of out-of-state attorneys who act unethically in court. By a seperate sealed order … that is being done,” Hanen wrote.
Finding that ethics are lacking in the halls of the Justice Department in Washington, D.C., Judge Hanen also ordered that any D.C. based DOJ attorney 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.” The ethics course must be taught by a recognized expert unaffiliated with the DOJ and should be at least 3 hours, per year. The Attorney General is required to appoint a person within DOJ that will file an annual report with Judge Hanen showing compliance with the order. The order is to remain in effect for the next five years, until 2021.
Lastly, Attorney General Loretta Lynch is required to develop “a comprehensive plan to prevent this unethical conduct from ever occurring again” and file it with Judge Hanen within 60 days. LawNewz.com received a statement from a DOJ spokesperson that simply said: “The Department disagrees with the order.”
“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,” Texas Attorney General Ken Paxton said in a statement on Thursday. “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.”
READ THE ENTIRE ORDER: