Andrew Hanen. (Photo: Esmer Olvera)
A federal district judge on Thursday excoriated U.S. Department of Justice lawyers who are defending the Obama administration’s immigration plan, issuing an extraordinary order that questioned the department’s policing of attorney ethics and ordered certain government lawyers to take an annual ethics class.
Finding that Justice Department lawyers repeatedly misled the court about when the government would begin implementing new immigration directives, U.S. District Judge Andrew Hanen ordered any Washington-based Justice Department lawyer who wants to appear in any state or federal court in the 26 states that sued the administration to attend an annual legal ethics course.
Hanen also ordered Attorney General Loretta Lynch to present a “comprehensive plan” to the court within 60 days about how to prevent future “unethical conduct.” And he ordered Lynch to notify the court within 60 days about steps she was taking to ensure the Office of Professional Responsibility—the DOJ office that oversees attorney conduct—was effectively policing lawyers within the department.
“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,” Hanen, who sits in Brownsville, Texas, wrote. “This court would be remiss if it left such unseemly and unprofessional conduct unaddressed.”
A spokesman for the Justice Department said in an email that “the department strongly disagrees with the order.”
States sued the Obama administration shortly after the immigration directives were announced in late 2014. The administration put in place new protections against deportation for the parents of U.S. citizen and permanent resident children—known as the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, program—and expanded a 2012 program that shielded young people brought to the United States illegally as children from deportation.
Hanen issued an injunction last year blocking implementation of DAPA and the expansion of the 2012 program, finding it was likely unlawful. The U.S. Court of Appeals for the Fifth Circuit upheld the injunction in May 2015. The fight is now before the U.S. Supreme Court.
Hanen found that Justice Department lawyers on several occasions provided false information about when the U.S. Department of Homeland Security would begin implementing the expansion of the 2012 program for young people—information that he said he relied on in issuing the injunction.
Justice Department lawyers “clearly violated their ethical duties,” Hanen wrote.
“Such conduct is certainly not worthy of any department whose name includes the word ‘Justice,’ ” the judge wrote. “Suffice it to say, the citizens of all fifty states, their counsel, the affected aliens and the judiciary all deserve better.
Beyond sanctioning the lawyers, Hanen also ordered the government to produce a list of any person in the 26 challenger states who was granted a benefit under the 2014 immigration directives between November 2014 and March 2015. That list would stay sealed with the court until the Supreme Court acted, Hanen said, at which point he would consider requests by the states to release information from it to the “proper authorities.”
Hanen’s ire was directed at Washington-based Justice Department lawyers. He said there was no evidence that lawyers from the U.S. Attorney’s Office for the Southern District of Texas committed misconduct. He also noted that none of the ethical breaches occurred under Lynch, who took over as attorney general from Eric Holder Jr., now a partner at Covington & Burling, in April 2015.
“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,” Hanen wrote.
Updated with comment from the Justice Department. Hanen’s order in Texas v. United States is posted below.