Justice Department lawyers get courtroom smackdown

Tom Temin Commentary

Justice Department lawyers get courtroom smackdown

A federal judge calls Justice Department lawyers' conduct unseemly, unprofessional, and beyond comprehension.

Tom Temin@tteminWFED

May 26, 2016 7:34 am

4 min read

Not being a lawyer, I don’t know what they teach in law school. Well, I mean, besides law. But I’m betting they teach you not to lie to judges. Considering that in most trials, each side tries to convince a judge or jury of its version of the truth, a certain percentage of all courtroom talk is, let’s say, coloring whatever the truth is. The point is to win, not to elucidate universal truths.

Still, some facts must be incontrovertible for there to even be a trial. Vinnie Musetto’s famous headline, “Headless body in topless bar” expressed two facts — what and where — each side had to agree on for a trial to occur.

That’s why one of the more remarkable documents is Texas federal judge Andrew Hanen’s wry but blistering order to the Justice Department, all the way up to Attorney General Loretta Lynch.

As former prosecutor Steve Ryan said on my show earlier this week, the actual case here — the legality of President Barack Obama’s executive action on immigration that 26 states have challenged — is a highly political one. Still, Ryan says, it appears the lawyers did in fact step out beyond the shadow of the truth.

The trial is about the Deferred Action for Childhood Arrivals. To boil down the issue here, the states agreed to continuances in the trial after the Justice Department promised explicitly and at least twice that the administration would not take any action on the executive order before a certain date. What DoJ lawyers knew but denied is that 100,000 deferral actions had already taken place. In his order, Hanen accused Justice of a lot of misrepresentation and misleading. He called their conduct unseemly, unprofessional and beyond comprehension. He writes, “Such conduct is certainly not worthy of any department whose name includes the word ‘Justice.'”

Ouch!

Hanen cited the requirement for lawyers to use candor in court. He lectured on the definition of candor. Then proceeded to hurl it in the Justice lawyers’ faces — virtually, since they weren’t in the courtroom when Hanen released his order. “Certainly no one can claim [the lawyers’ statements] even approaches candor to the Court,” he writes, adding, the federal lawyers failed on their three ethical duties: “Tell the truth; do not mislead the Court; and do not allow the Court to be misled.”

The judge concluded the lawyers lied 100,000 times — once for each DACA case they knew about but said hadn’t happened.

Hanen even quotes the 10-year-old Tommy Mara, Jr. from the 1947 Miracle on 34th Street. The judge asks the child, “Tommy, you know the difference between telling the truth and telling a lie, don’t you?” To which Tommy replies, “Gosh, everybody knows you shouldn’t tell a lie, especially in court.”

The order goes on for 28 pages. I read the whole astonishing thing. Eventually, Hanen gets to his remedy, which is to require the Justice lawyers to receive ethics training. It’s not a trivial order. Hanen says any Justice lawyer from Washington who wants to appear in any of the 26 plaintiff states must attend an annual legal ethics course of at least three hours in duration. And no online or self study. For good measure, it orders Attorney General Loretta Lynch to submit a compliance plan within 60 days.

Hanen says his court doesn’t have the power to disbar the lawyers, but he can and does bar these particular lawyers from appearing again.

In some ways, this incident harkens back to the 2008 corruption conviction of the late Sen. Ted Stevens (R-Alaska). Two federal prosecutors were later found — by the Justice Department itself — to have engaged in “reckless and professional misconduct.” James Goeke and Joseph Bottini had withheld evidence that might have cleared Stevens, and so his conviction was famously overturned.

It’s an old story. Most prosecutors, we hope, are honest. Given the power and resources they have over individual Americans, the only way to have faith in the system is trust that prosecutorial power is used with discretion and with absolute ethics. States are the plaintiff in the immigration case. But when the government goes after individuals, the costs are ruinous, even if the individual prevails. Maybe that was also in the back of Hanen’s mind.