There has been a flurry of procedural developments in the lawsuit filed by 26 states in a Texas federal court against President Obama’s amnesty plan for 5 million illegal aliens. On March 19, Justice Department lawyers — and officials of the Department of Homeland Security (DHS) — will be in the hot seat at a hearing scheduled by Judge Andrew Hanen. Sitting in the dock, they will have to explain whether they misled (others might say “lied to”) the court. Or, as Hanen put it in formal judge-speak: “be prepared to fully explain to this Court all of the matters addressed in and circumstances surrounding” the “Advisory” filed by the government on March 3.
Many lawyer jokes play off the premise that lawyers are congenitally incapable of telling the truth. But in reality, lawyers have an obligation to be honest in their dealings with a court: They have to tell the truth. Under the American Bar Association’s Model Rule of Professional Conduct 3.3, attorneys have an ethical obligation of “Candor toward the Tribunal.” They shall not knowingly “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”
This is particularly important because judges often make their decisions — or delay making a decision — on the basis of what they are told by lawyers. Candor is especially crucial from government lawyers, given the enormous consequences often at stake in the cases they prosecute or defend, like this immigration case.
As you may remember, Judge Hanen shocked the Obama Justice Department on February 16 (Presidents’ Day, ironically enough) when he issued an order enjoining the federal government from “implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA). He also enjoined the government from “implementing any and all aspects or phases of the expansions (including any and all changes) to the Deferred Action for Childhood Arrivals” (DACA). DACA was President Obama’s 2012 executive action taken to implement the DREAM Act when that legislation failed to pass Congress.
A week later, the Justice Department filed an appeal with the Fifth Circuit Court of Appeals. At the same time, it filed a motion with Judge Hanen asking him to stay his injunction order pending the outcome of the appeal. To date, Judge Hanen has refused to lift the injunction order.
However, on March 3, lawyers at the Justice Department, including U.S. Attorney Kenneth Magidson and acting assistant attorney general for the Civil Division Benjamin C. Mizer, filed an odd document with the court labeled “Defendants’ Advisory.” In it, DOJ informed Judge Hanen that between November 20, when the president announced his new plan, and February 16, when the injunction was issued, DHS “granted three-year periods of deferred action to approximately 100,000” illegal aliens who had already received two-year deferrals under the original 2012 DACA program for “Childhood Arrivals.” This three-year deferral was one of the new initiatives announced by President Obama on November 20.
The problem with this “Advisory,” as Texas and the other plaintiff states pointed out, is that the government told the court and the states “on several prior occasions that USCIS [U.S. Citizenship and Immigration Services] would not consider requests for deferred action” until February 15, 2015. For example, according to a transcript of a December 19, 2014, telephone conference with the court, Kyle Freeny, an attorney with the Civil Division of the Justice Department, told Judge Hanen that DHS was “directed to begin accepting requests for deferred action . . . by mid-February but we wouldn’t anticipate any decisions on those for some time thereafter” (emphasis added).
The court relied on that assurance of non-action from DOJ to set the schedule for legal actions, including dates for both sides to file briefs and for a hearing on the states’ request for a preliminary injunction. The hearing was scheduled for January 15, and on January 14 the Justice Department asked for a two-week extension of time to file another reply to the states’ injunction motion. In that request, the government said the states’ case would “not be prejudiced” by the extension because the government “does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015.”
At the hearing the next day, Deputy Assistant Attorney General Kathleen Hartnett repeated that assurance, telling Judge Hanen once again that no applications for either the revised DACA or the new DAPA would “be accepted until the 18th of February, and that no action would be taken on any of those applications until March the 4th.” She was pressed on that very issue by Judge Hanen, who asked her: “But as far as you know, nothing is going to happen in the next three weeks?” According to the transcript, Hartnett said, “No, Your Honor . . . in terms of accepting applications or granting any up or down applications.”
As a result of these repeated assurances, Judge Hanen granted the government until January 30 to file a further response to the injunction request, thus effectively delaying a decision on the injunction motion. And the judge obviously felt no need to issue his eventual injunction order until February 16 because he thought no actions would be taken on the amnesty plan until February 18.
Yet, from the advisory filed by Justice Department lawyers, including both Kathleen Hartnett and Kyle Freeny, it would appear that all those statements and assurances given to the court were completely false. Of course, the DOJ lawyers don’t admit that. They try to obfuscate the matter by simply saying that their prior assurances “may have led to confusion about when USCIS had begun providing three-year terms of deferred action.” They don’t explain why they made those false claims or failed to inform the court that the entire time the court action was proceeding — the entire time they were assuring the judge and the states that no actions were being taken to implement the president’s plan — DHS was granting literally tens of thousands of three-year deferrals — approximately 100,000 in total — over a two-and-a-half-month period.
Even then, having admitted this seeming glaring discrepancy between what the government was telling the court it was doing and what it was actually doing, the Justice Department nonchalantly informed the court in its advisory that it did not understand the injunction motion to “require them to take affirmative steps to revoke” the three-year deferrals and the “work authorization (and accompanying documents, including EADs [Employment Authorization Documents]) that were issued.”
The American Bar Association rule required the DOJ lawyers to correct the “false statement of material fact . . . previously made to” Judge Hanen by filing the advisory. But what they are going to have to explain on March 19 is when they found out that they had falsely informed Judge Hanen about DHS’s supposed inaction. If they knew about it at the time they made those statements to the court, they could be severely sanctioned or worse.
One thing we do know: The DOJ lawyers have been working with the highest officials in DHS, who would (or should) have known about the implementation of the president’s plan and the granting of 100,000 deferrals. When DOJ filed its February 23 motion asking Judge Hanen to stay his injunction order pending the appeal, Justice attached two affidavits in support of its motion. One was from Sarah R. Saldaña, the director of U.S. Immigration and Customs Enforcement at DHS; the other was from R. Gil Kerlikowske, the commissioner of U.S. Customs and Border Protection. They provided extensive explanations of the president’s policies. It is difficult to believe that the heads of these major components of DHS did not know about the 100,000 applicants being processed or that they did not inform DOJ of that fact.
Perhaps there is some innocent explanation, although that seems hard to credit. And the Texas Attorney General’s Office has asked the court to permit it to take some early discovery about what the government did here. Either way, March 19 should be quite an interesting day in Judge Hanen’s courtroom in the Southern District of Texas, Brownsville Division.
— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation. Along with John Fund, he is the co-author of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter 2012) and Obama’s Enforcer: Eric Holder’s Justice Department (HarperCollins/Broadside 2014).