Judge exceeded authority by ordering ethics classes for possibly 3,000 DOJ lawyers, brief says
The U.S. Justice Department is asking a federal judge to stay his unusual order requiring department lawyers who appear in any court in 26 states to take ethics classes for alleged misrepresentations in a major immigration case.
The Justice Department brief filed on Tuesday argues that the sweeping sanctions imposed earlier this month by U.S. District Judge Andrew Hanen of Brownsville, Texas, “far exceed the bounds of appropriate remedies.”
The Justice Department brief argues that Hanen “has no inherent authority to superimpose additional ethics-training requirements” on more than 3,000 Justice Department attorneys who are unconnected to the immigration case before Hanen. In addition, the brief argues, Hanen’s order interferes with the Attorney General’s executive authority and violates the separation of powers.
Hanen had found Justice Department lawyers made misrepresentations concerning the implementation date of President Obama’s deferred deportation program. According to Hanen, Justice Department lawyers asserted the deferred deportation program would not be implemented until February 2015, even though the government had already expanded deportation deferrals from two to three years for more than 100,000 immigrants.
The Justice Department argues that Hanen’s conclusion “is wrong, and made worse by (and perhaps explained by) the absence of the required fair process for the Department and its attorneys.” The brief says the department will seek an immediate appeal, mandamus, or both.
Hanen’s May 19 sanctions order required any Justice Department lawyers who want to appear in the 26 states challenging the deferred deportations to attend an annual ethics course for the next five years. Hanen also ordered Attorney General Loretta Lynch to develop a “comprehensive plan” to prevent future unethical conduct.
In addition, Hanen ordered the government to provide a list of all the immigrants who received the three-year deferred deportations. The list is to be kept under seal until the U.S. Supreme Court rules on an earlier injunction blocking the deferred deportation program, which was implemented by executive action. The Justice Department brief says the list order should also be stayed.
ThinkProgress examined an earlier Justice Department brief (PDF) in the case. According to the brief, the implementation date for the three-year extensions had already been disclosed in a Department of Homeland Security directive, while the date for implementation of other parts of the government’s deferred deportation program was left ambiguous. As a result, government lawyers believed Hanen was talking about the ambiguous date when he asked about implementation.
The government also said the states challenging the program were concerned about expanding the program to provide relief for additional categories of immigrants, rather than whether immigrants already eligible for deferred action would receive it for two or three years.
Hanen was not persuaded. “Apparently, lawyers, somewhere in the halls of the Justice Department whose identities are unknown to this court, decided unilaterally” that the granting of the renewals “was immaterial and irrelevant to this lawsuit and that the DOJ could therefore just ignore it,” Hanen said in his May 19 order. “The decision of the lawyers who apparently determined that these three-year renewals … were not covered by the plaintiff states’ pleadings was clearly unreasonable,” Hanen said.
