Trying energetically to avoid any punishment by a federal judge who has complained of ethical lapses by Justice Department lawyers during the big immigration case, the Obama administration on Monday reluctantly agreed that it would accept some mild forms of sanctions.
Those developments, in the Brownsville, Texas, court of District Judge Andrew S. Hanen, came in a large filing with the public versions showing extensive deletions to protect privacy, and with some sworn statements not disclosed publicly at all. The judge had issued a sweeping sanctions order in May, but has since put that on hold, and gave the department the opportunity to explain further and to suggest what final punishment he should impose.
Throughout the filing, the administration’s lawyers insisted that government attorneys at no time engaged in “bad faith’ actions, and argued that no sanctions of any kind would be justifiable legally. Since the judge was using his “inherent power” to protect his court, the filings contended, no punishment is proper in the absence of clear proof of bad faith. The papers openly conceded a string of mistakes and misstatements, while insisting that none was intentional.
The judge struck boldly and expansively at the department in May after concluding that, while the judge was considering a request by 26 challenging states to put the broad new deferred deportation policy on hold, federal officials went ahead and began implementing some parts of the overall program that President Obama had announced in November 2014. (That overall program has never gone into effect, because Judge Hanen blocked it temporarily pending a full trial, and his order was upheld by a federal appeals court and, in June, by a 4-to-4 split in the Supreme Court. The administration is now asking the Justices to reconsider.)
At the same time that the administration argued Monday against any punishment at all, its filings conceded that the judge may yet wish to impose some disciplinary action, so it told him — in response to his call for suggestions — that it would not resist the following:
** Any further public statements that the judge chose to make that continued his criticism of the conduct of lawyers appearing before him. His harsh public comments so far have already helped protect the processes of his court, the government said.
** The judge would be free to monitor a new round of additional ethics training that the department has adopted on its own for its Civil Division attorneys, and the judge could require proof that this new training actually gets completed. (The judge’s may order had demanded annual ethics training for any department lawyer appearing in any court, not just in the courts in the 26 suing states.)
** The government would accept an order to pay the 26 states that sued over the immigration policy an amount to compensate them for the fees and costs they may have had to put up as a result of “any intentional representations” that the judge ultimately might find. It gave no estimate of amounts.
However, the new filing argued strongly against any sanctions against any individual attorneys, calling such a move “unnecessary and inappropriate.” What the judge was told about any of the disputed submissions in court was the product of “a group effort by a large number of attorneys,” the gpverm,emt argued. If anyone is to be punished, it should either be the federal government or the Justice Department itself, it argued. Much of the content of 83 pages of filings was a recounting of how the controversy developed over what the judge was told that ultimately led him to complain.
And, just as strongly, the administration argued that there should be no impact on the 108,000 young immigrants who were given added benefits under the deferred deportation policy — for a third year of avoiding deportation and a right to get a jotes instead of two — because those individuals caused no harm to the suing states.
Because the judge’s complaints about ethical violations were based directly on his claims that he was deceived about those added benefits to the youths, his sanctions order had required the private disclosure to the court — and possibly to the states — of personal information about each of those 108,000 individuals. Civil rights groups have also protested heavily against that requirement, and are prepared to appeal it, if it stands.
The government had asked Judge Hanen’s permission to supply the new material under seal, and the judge agreed to that last week, but then gave the Justice Department only until Monday to file on the public record the filing in redacted form.
The judge has now scheduled a meeting with all attorneys involved in the ethics case, as well as in the ongoing move toward a trial on the legality of the immigration policy, for August 31. In the meantime, the order blocking enforcement of the policy remains intact.
The Justice Department has also asked the judge to withdraw his May sanctions order, at least for the time being. If he does not, it has argued — over the 26 states’ objection — that he might lose jurisdiction to proceed further if appeals of that order go forward to the U.S. Court of Appeals for the Fifth Circuit.
The main part of the government’s Monday filing is a 51-page document, in redacted form, spelling out the history of the ethics controversy and making the legal arguments on the judge’s power and on what he might yet do to impose punishment if he insisted on doing so. That document can be read here.