When federal judge Andrew Hanen, of the U.S. District Court of the Southern District of Texas, issued an injunction temporarily blocking President Obama’s most recent executive amnesty as of February 16, he did not choose the date arbitrarily. To establish his timeline, Judge Hanen relied on claims by Department of Justice lawyers that the president’s Deferred Action for Parental Accountability (DAPA), issued in November, had not yet been implemented, and would not be until at least mid February. But early this month the government’s attorneys admitted that they misled Judge Hanen. Between November 20, when President Obama issued his fiat, and February 16, the Department of Homeland Security (DHS) granted approximately 100,000 applications for deferred action under the expansion of the Deferred Action for Childhood Arrivals (DACA) program created in DAPA.
Did the government’s lawyers lie? Or did they make a months-long mistake? That was the question posed to the DOJ’s legal team by a visibly angry Judge Hanen in a hearing in Brownsville, Texas, last Thursday.
Deputy Assistant Attorney General Kathleen Hartnett could not explain why multiple DOJ lawyers — herself included — told the court multiple times over two and a half months that DHS would not be accepting requests for deferred action under the challenged order until mid February. She implausibly claimed that the legal team thought the injunction request did not apply to the expansion of DACA under the president’s November order — despite the clear words of the states’ initial filings and explicit statements made in court.
It seems clear what Hanen thinks happened: “When I asked you what would happen and you said nothing, I took it to heart. I was made to look like an idiot,” Hanen told Hartnett. “I believed your word that nothing would happen. . . . Like an idiot, I believed that.”
If Hanen was, in fact, duped, he would not be the first one. This administration has been happy to employ dishonesty for political gain, and in Eric Holder’s wildly politicized Department of Justice, lawyers playing fast and loose with the truth would be no surprise. If the government’s attorneys did not willfully deceive, then the only credible alternative explanation is staggering incompetence — which should be alarming in its own right.
In light of this latest revelation, the plaintiffs — 26 states, led by Texas — have filed a discovery request for internal federal immigration documents, which Hanen appears inclined to grant. Additionally, he announced that he is contemplating sanctions against the DOJ, if he decides that its attorneys did, indeed, lie to the court. Hanen could issue an order rebuking the lawyers, which would be sent to the Justice Department’s Office of Professional Responsibility (OPR), tasked with investigating ethics violations by DOJ lawyers, and to the state bar associations where the offending attorneys practice (the former probably would have no effect — OPR is run by Robin Ashton, a highly political Eric Holder protégé — but the latter might), and he could also strike one or more of the DOJ’s pleadings in the suit, narrowing the government’s legal options going forward.
Either decision would be significant for another reason. The government has appealed to the Fifth Circuit to stay Judge Hanen’s injunction, and the plaintiffs have yet to file a response. An order censuring the DOJ for its conduct would certainly be a part of that response, and would significantly hamper DOJ’s chances before the higher court.
In any case, the sanctions will hardly compensate for the cost already imposed by the federal government. As the plaintiffs’ attorney, Angela Colmenero, observed, since the new DACA applications are already granted, it is “virtually impossible to unscramble the egg.”
Indeed. If he finds that they sought to deceive, Judge Hanen should throw the book at the DOJ’s lawyers, and everyone watching should remember that, whether this was an intentional con or incompetence, it is — when it comes to this Justice Department, and this administration — all too typical.