Judge orders ‘intentionally deceptive’ DOJ lawyers to take remedial ethics classes – Washington Times


Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.

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62 Responses

  1. Avatar Oscar Gordon says:

    So attorney’s & officials defy judge’s orders, and the worst he does to them is send them to school?

    No contempt of court charges, no perjury charges, no very painful fines, no disbarment, no jail time.

    Where, exactly, is the incentive for lawyers to be ethical again?Report

    • Avatar nevermoor says:

      In California, at least, the only thing that tends to get attorneys disbarred is behavior that harms their own client (e.g. stealing their money). And the judge hearing the case where the issue comes up doesn’t have the power to do it anyway.

      I suspect this order (if accurate), will do plenty of harm to the attorneys’ careers (and to the pending litigation) to dissuade others from misleading the Court.Report

      • Avatar Oscar Gordon says:

        Perhaps. To my eyes (as an outsider), government lawyer careers seem to have an awful lot of armor, or perhaps teflon, about them.Report

        • Avatar nevermoor says:

          Well, AUSAs have a union, so they may not be fired, and it may be that the judge is wrong that they disobeyed an order. But the US Attorney’s office demands, and relies on, credibility with judges since it is one of the most-repeat players there is in the country.Report

  2. Avatar Christopher Carr says:

    Yes, because clearly the ethical thing to do is to forcibly separate families based on their brownness/English proficiency.Report

    • Avatar Damon says:

      No the ethical thing for lawyers to do is comply with the judges ruling or appeal it. Not hide the fact that they are violating that ruling. You’re saying it’s ethical to violate your profession’s ethics, disobey a legal judicial ruling, and actively hide those facts from the judge? That’s ethical?Report

    • Avatar Kim says:

      That’s morals, not ethics. Lawyers have professional responsibilities.Report

  3. Avatar Saul Degraw says:

    The liberal view. This is a very conservative judge.

    “A federal judge with a history of anti-immigrant sentiment ordered the federal government to turn over the names, addresses and “all available contact information” of over 100,000 immigrants living within the United States. He does so in a strange order that quotes extensively from movie scripts and that alleges a conspiracy of attorneys “somewhere in the halls of the Justice Department whose identities are unknown to this Court.”

    It appears to be, as several immigration advocates noted shortly after the order was handed down, an effort to intimidate immigrants who benefit from certain Obama administration programs from participating in those programs, lest their personal information be turned over to people who wish them harm. As Greisa Martinez, Advocacy Director for United We Dream, said in a statement, the judge is “asking for the personal information of young people just to whip up fear” — fear, no doubt, of what could happen if anti-immigrant state officials got their hands on this information. Or if the information became public.
    austin to brownsville

    The judge is Andrew Hanen, who conservative attorneys opposed to President Obama’s immigration policies appear to have sought out specifically because of his belief that America does not treat immigrants with sufficient hostility. Texas v. United States was filed shortly after President Obama announced policy changes that would permit close to 5 million undocumented immigrants to temporarily work and remain in the country. As the name of the case suggests, the lead plaintiff is the State of Texas, yet the Texas Attorney General’s office did not file this case in Austin, the state’s capitol. Instead, they filed it over five hours away in the town of Brownsville.”


    • Avatar Damon says:

      That’s what appeals are for. Getting a ruling you don’t like doesn’t allow you to violate your responsibilities.Report

    • Avatar Oscar Gordon says:

      And there is no legal remedy for DOJ lawyers to get around this guy besides disobeying his orders? No way to appeal, etc.?Report

    • Avatar Oscar Gordon says:


      I mean, you understand the moral hazard you seem to be encouraging here, right? If it’s OK for DOJ lawyers to ignore this judge’s orders because his orders are bizarre or seem to exceed his authority, then it is also OK for DAs to ignore judges who demand they release a suspect for whatever reason, etc. because the DA is sure of the suspects guilt.Report

      • Avatar Kim says:

        I think there’s a case made for “this isn’t physically possible” — though I’m not sure what the professional responsibilities for that would be. Possibly telling the judge that in chambers.Report

      • Avatar Saul Degraw says:

        I think the DOJ should appeal and ask for an injunction until the Court of Appeals rules on the case. If the Court of Appeals refuses to issue an injunction, the DOJ should comply.

        I was merely pointing out that the Washington Times is not the best example of getting an unbiased view on the story and that the Judge is archly conservative and might have biases of his own.

        Forum shopping is a thing and this suit seems to be a good example of forum shopping.Report

        • Avatar Oscar Gordon says:



          I’m not trying to say the guy is right, only that the system has rules, the players in the system need to respect the rules, and the system has to have significant penalties for rule violations if it wants those rules respected (something that, IMHO, our legal system lacks when it comes to judges & lawyers playing fast & loose with the rules).Report

          • Avatar nevermoor says:

            This is correct.

            When a judge makes a crazy ruling, you have various remedies depending upon the situation. Ignoring the order is never on the list.

            Now, I don’t know whether it’s fair to say the attorneys here did so, but if they did they’d be way out of bounds no matter how dumb the initial order.Report

            • Avatar Joe Sal says:

              Huh, lawyers aren’t able to disregard the order if it is illegal?Report

              • Avatar nevermoor says:

                It isn’t illegal. It’s a court order. If they think it’s wrong, they can challenge it at the next level.

                Any other rule and you’d always have the losing side deciding the order was illegal.Report

      • Avatar pillsy says:

        The defense the DOJ is offering is that the failure to comply with the judge’s orders resulted from a misunderstanding of those orders, rather than a deliberate attempt to disobey them or mislead the court. Ibid:

        Hanen claims that the Justice Department attorneys intentionally deceived him by not mentioning the fact that the amount of time afforded to DACA beneficiaries had changed. The Justice Department claims that, at most, they misunderstood what Hanen was asking for. They believed that Hanen was only asking about the dates when DAPA and expanded DACA would be implemented, and not about the shift from two to three years. This distinction matters because, while deliberately misleading a court is a very serious ethical breach, misunderstanding a question is not.

        I have nothing more than partisan bias to determine which side has the more plausible argument, so I’ll refrain from debating that point.Report

        • Avatar Oscar Gordon says:

          Well, if that is the case, that colors it a bit differently (I think). Bending poorly written orders may be irritating, but it does strike me as being within the rules.Report

  4. Avatar LeeEsq says:

    As an Immigration lawyer, I know that the Obama administration has not been offering amnesty applications. What has been occurring is that DHS is using it’s prosecutorial discretion to administratively close certain removal cases, the formal legal term for deportation proceedings against an alien. If an alien has arrived in the United States before January 1, 2014 and has none or minor criminal history than they are considered a low priority for removal. Aliens can make a motion for prosecutorial discretion and get their removal case closed. This doesn’t give them official status, they don’t even get work authorization but they can remain in the United States. You really need to stretch the definition of amnesty.Report

  5. Avatar Murali says:

    3 points

    1. The right to move is one of the most basic liberal* (and human) rights. If there is anything like a consensus among political philosophers across the political spectrum, it is that most restrictions that states commonly impose on the free migration of people are unjust.

    2. The second thing which practically every political theorist agrees on is that there is never any moral obligation to comply with a law (or lawful order) if doing so violates a fundamental right.

    3. If the right to freedom of movement is so important, then it is permissible (and probably obligatory) to lie to anybody seeking to violate that right. Classic case of whether it is permissible to lie to the Nazi looking for your friend: Everyone (there may be exceptions, but I can’t name them off the bat) agrees that it is permissible to lie to the Nazi who has come looking for the jews hidden in your basement. The same exception applies here as well.

    What this means is that unless the ethics class is taught by a hack, they will be taught to continue doing the same.

    *in the sense of liberal democracy, not lefty liberal.Report

    • Avatar Oscar Gordon says:

      Of course, you also have to own the fact that if the Nazi’s catch you lying to them, there will be a price to pay.Report

    • Avatar nevermoor says:

      No. Just no.

      Show me one ethics professor suggesting the DOJ should ignore valid court orders (let alone all the non-hacks) and I’ll be very very stunned. I also disagree that free movement between nations is a fundamental and unregulatable right. I’m not sure there has ever been a time in history where that was the case.Report

      • Avatar Murali says:

        Every moral and political theorist I have ever talked to (and I’ve talked to more than my fair share and probably more than anyone else on this site excluding Elizabeth or Jason if they are lurking) affirms freedom of movement and the right to disobey and/or deceive officials who would violate that right.Report

        • Avatar nevermoor says:

          I’m sure you’ve talked to more than me. Has there ever been a time in history where boarders were completely uncontrolled? If not, how do you jump from “this right has never existed” to “this is a fundamental right such that any restriction is unjust and worth violating your professional responsibilities for”?

          I mean, I’m strongly pro-immigration but I don’t think limits are violative of some sort of fundamental right. Just that they are usually dumb, counter-productive, and bad for everyone involved.Report

      • Avatar Murali says:

        Also, I never said that free movement was necessarily unregulatable (though lots of people think so). But any morally permissible regulation is still so far away from the status quo as to make little difference.

        The current state of the debate on the issue of political authority is between people like Joseph Raz who think that you have political authority only when it better helps you fulfill your natural (pre political) duties and people who think that even in that limited case, there is no political authority.

        There is no reason why legal validity should entail any moral duty to obey.Report

        • Avatar nevermoor says:

          Sorry, but this sounds like complete nonsense to me.

          Are you really saying the US has no “political authority” to deport people? Even violent criminals?Report

    • Avatar James K says:


      And how would that differ from what Kim Davis did? You cannot allow government officials to use their personal ethics to override the law.Report

      • Avatar Murali says:

        Kim Davis wasn’t ordered to violate anyone’s rights?

        Also whereas the rightness or wrongness of gay marriage is a matter of private morality, the same cannot be said about the right to enter and exit.

        Given practically any moral starting point that people actually hold, its not going to come out okay to prevent people from moving over when their doing so violates no one’s rights.Report

        • Avatar James K says:


          It doesn’t matter whether its right or wrong, if you allow a system where every government official can follow their own morality at the expense of legal authority the entire system of government disintegrates.Report

          • Avatar Murali says:

            That would be true, if the thing in question is right or wrong only according to some moralities. If something is wrong on practically every morality, that would be a difference. If the morality of some act is the subject of an overlapping consensus of reasonable moralities (i.e. every morality that is not horribly murderous and/or cruel) then it is different. The overlapping consensus requirement places a significant constraint on when it is okay to disobey orders. With such a constraint in place, the entire system of government won’t disintegrate just because people routinely disobey one or two of the requirements, at least not if it is any government worth keeping around.Report

  6. Avatar Francis says:

    “Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. 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.”

    Just a leeetle bit beyond the scope of his authority.Report

    • Avatar Oscar Gordon says:

      Someday I’d like to read a good primer on what exactly is the scope of a judge’s authority. I wonder if Popehat ever did one…?Report

      • Avatar nevermoor says:

        Not really easy to do. Courts can do a whole host of things, and–more to the point–can write whatever they want on a piece of paper. If they write something that exceeds their authority, you take an appeal to clear it up.Report

        • Avatar Oscar Gordon says:

          So if you are a person of limited resources, and a judge writes you an order outside of his authority, your only hope is that a lawyer will file an appeal pro bono?Report

          • Avatar nevermoor says:

            Yep. Though if it’s wildly outside the normal bounds I suspect that hope would be pretty easily satisfied by somewhere like the ACLU.Report

      • Avatar Francis says:

        Courts have the sanction powers explicitly given to them by statute. As Mr Likko litigates on a regular basis and I don’t, he will be the better source. Courts also have the intrinsic power to control their courtroom, which gives them broad powers to insist that the attorneys before them behave.

        But just because one lawyer misbehaves doesn’t empower the judge to require the head of the law firm or the other lawyers in the firm who aren’t before him to start jumping through hoops. Doing so violates basic ideas of due process. This is true whether the law firm is the DOJ or Skadden Arps.

        If, in a sanctions hearing, a lawyer claims he was following the orders of his supervisor, then the judge can go up that one step in the ladder and demand answers from that person. Et cetera, et cetera. But you don’t get to jump all the way to the top of the command hierarchy just because some flunky has (apparently) been untruthful.Report

        • Avatar Oscar Gordon says:

          That seems pretty obvious, which understandably makes the orders bizarre.

          Which begets the question, how many times can a judge try to exceed their authority before they get tossed from the bench? I mean, if the rest of us have to tolerate 3 strikes…Report

          • Avatar Francis says:

            Until such time as they get impeached and removed from office by the US House and Senate. US Constitution, Art. II, sec. 4.

            Additional responses. Joe Sal — Yes, attorneys obey illegal orders. Judicial orders aren’t illegal until a higher court says so. There are various ways of seeking expedited appellate review and of getting compliance with the order stayed pending completion of that review.

            Oscar — persons of limited resources frequently get screwed by the judicial system. A tiny number of cases are taken pro bono. A fair number are taken on contingency, which means the lawyer gets paid only if he wins. In both those cases the counsel of record would fight the order on appeal. People appearing pro se (without assistance of counsel) usually get a lot of leniency from the judge. Blood from a stone — what’s the point of screwing some person for not knowing the rules when he’s not even a lawyer?Report

        • Avatar nevermoor says:

          And yet, if a judge in one of my cases ordered the head of my firm to attend a hearing, I bet he’d be there.Report

          • Avatar Francis says:

            Even if your firm has 1000s of lawyers, practices in all 50 states, and the managing partner is in another state, three management tiers removed from the team heading the litigation? I suspect that before conceding to the order he’d tell his appellate department to seek an emergency writ.Report

    • Avatar nevermoor says:

      Was coming here to link this at exactly the same point.Report

  7. Avatar Jaybird says:

    If you shrug at government lawyer lies to courts when they're in service of your ideology, you're functionally totalitarian.— Popehat (@Popehat) May 20, 2016


  8. Avatar Fortytwo says:

    I wouldn’t trust anything coming from the Washington Times. I accidentally bought it one time thinking it was a real newspaper. They mix editorial opinion into news stories in a quite blatant way.Report

    • Avatar notme says:

      Would hearing it from a liberal rag change what the DOJ lawyers did?Report

      • Avatar Fortytwo says:

        If they did what is alleged they should be, but won’t be, fired. The source leads me to take it with a grain of salt until I see more about the story.Report

  9. Right-wing rag quotes right-wing judge accusing Obama administration of acting illegally. Yawn.Report

    • Avatar notme says:

      So you honestly believe the DOJ lawyers acted ethically?Report

      • I don’t believe the judge’s characterization of what they did.Report

        • Avatar notme says:

          The judge characterized their actions as unethical. So you think they acted ethically?Report

          • Avatar Art Deco says:

            The political culture of our time differs from that of the 1970s in that once upon a time, people had certain biases but also had a conception of what was ‘moral’ or ‘ethical’ among public figures which was not dependent on affiliations or political goals. So, you have a Republican inner-ringer like Barber Conable saying, “I will vote for Article I. I do not approve of leaders who mislead”). What counted as a scandal in 1974 or 1979 seems almost quaint today.Report

            • Avatar Francis says:

              yeah, it’s really shocking that more people aren’t complaining about the judge’s abuse of power.Report

            • And when the GOP was trying to impeach William O. Douglas for the crime of being a liberal justice, Jerry Ford said “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Good (and highly principled) times, good times.Report

          • Avatar pillsy says:

            I think if they deliberately lied or mislead the court (which is the judge’s contention), then yes, they acted unethically.

            I think if they misunderstood the judge’s order and accidentally mislead the court (which is their contention), then no, they did not act unethically.Report

          • There’s no credible evidence that they did not.Report

  10. Avatar Van_Owen says:

    I know there are some disputes about what happened in the case, but I’m going to take it at face value for the moment. What I find interesting about this is that even though the Judge claims an extreme ethical violation on behalf of the DOJ attorneys, he still declined to name them in the public order. The last page of the order refers to a sealed companion order that revokes the pro hac vice licenses of the offending attorneys. It’s hard to not conclude that the purpose of including that part of the sanctions in the sealed order was to avoid naming them.

    Do federal judges typically go out of their way to avoid naming private sector attorneys who engage in egregious ethical violations in their court?Report

  11. Avatar Chip Daniels says:

    I am withholding judgment until I discover whether or not the flag in the courtroom had gold fringe or not.Report