This Judge Just WRECKED Obama's Justice Department

This is downright brutal. And unnecessary.

Judge Andrew Hanen

Judge Andrew Hanen

Let’s talk about how the entire Justice Department just got reamed in a 28-page order that teetered between smoldering fury and white-hot rage. That’s not a mistaken or overblown choice of words either. The entire emotional range of Southern District of Texas Judge Andrew Hanen collapsed upon itself like a dying star before exploding in a supernova of fierce benchslappery against not just “a” government lawyer, but pretty much “every” government lawyer.

Judge Hanen is overseeing the challenge — presently before the “Truncated Eight” that we call our Supreme Court — brought by 26 states against President Obama’s immigration plan. The challenge is, of course, pure political showboating against the administration’s plan to protect kids brought here illegally from having to come back here illegally a second time. Or, you know, having their lives as perfectly upstanding innocent bystanders disrupted. Depends on which side of the political spectrum you prefer.

But what got Judge Hanen in an uproar yesterday was not so much the Obama policy, but his sense that the Department of Justice routinely lied, or at least recklessly misled him, throughout the case in violation of ethical obligations. In a nutshell, Judge Hanen is miffed that the Department of Homeland Security began bestowing benefits under this new program and that, on multiple occasions, the Department of Justice didn’t tell Judge Hanen about this while the court contemplated enjoining the government.

That’s pretty bad. No matter how stupid this challenge may be, the government can’t really blow off the judge hearing the case. The misstatements, at least as laid out by Judge Hanen, are devastating.

But like Icarus of old, Judge Hanen goes too far. It’s okay. Sometimes we all get angry and say things we don’t mean or have any rational reason to decree by judicial order.

After quoting at some length from Miracle on 34th Street — no, really — Judge Hanen orders:

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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.

If that weren’t enough, he also demands that, for five years, the Department of Justice provide him with a f**king list of every Justice lawyer who appeared in every applicable court throughout the year along with proof that the lawyer attended a course tailored to that jurisdiction. And online courses don’t count, because… obviously.[1]

This is a laughably insane overreach based on his beef with a narrow, if important to him, misstatement by a few lawyers in one case. But it goes to show how egregious he thinks this is. To wit:

Such conduct is certainly not worthy of any department whose name includes the word “Justice.” Suffice it to say, the citizens of all fifty states, their counsel, the affected aliens and the judiciary all deserve better.

Damn. Faced with this blistering sentiment, the nonetheless-unwilling-to-rename-itself “Justice” Department told the National Law Journal via email that “the department strongly disagrees with the order.”

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But there’s another interesting point in this opinion highlighted in Zoe Tillman’s coverage in the National Law Journal:

Hanen’s ire was directed at Washington-based Justice Department lawyers. He said there was no evidence that lawyers from the U.S. Attorney’s Office for the Southern District of Texas committed misconduct. He also noted that none of the ethical breaches occurred under [current attorney general Loretta] Lynch, who took over as attorney general from Eric Holder Jr., now a partner at Covington & Burling, in April 2015.

Now, wait a minute. Either punish only the specific lawyers in front of you, or declare that the DOJ needs to subject every lawyer potentially trampling a citizen’s rights to some crazy course and reporting requirement. This artificial segregation of local and Washington-based lawyers is uncalled for (though not unprecedented, like when Judge Hughes once said, on the record, that Washington DOJ lawyers were “sons of bitches”).

It smacks of the unwarranted favoritism at play in favor of the government lawyers that judges see every day — remember the Ninth Circuit’s uncomfortable giggle-fest — who often have the same job the judge used to have, or work directly for one of the judge’s old colleagues.

More importantly, just because the always complex, often bureaucratic matters involving “Main Justice” present more obvious instances of mistake or deception, that’s no reason to assume running an indigent kid into an amorphous “conspiracy” conviction on greased rails is without shady tactics. Well-funded adversaries and high-profile political cases will reveal missteps that a federal defender and a supposedly routine criminal case may never be able to surface. The point is, if the DOJ is systematically asleep at the switch, then no DOJ lawyer should be spared.

In any event, the opinion is still a brutal benchslap of unmoored movie quotes, seemingly dead-to-rights transcript excerpts, and ham-fisted overreach.

Not to borrow from Sir Winston Churchill, though the late Prime Minister seems like a guy who’d have enjoyed a good benchslap, so why not: “Never have so many been benchslapped so mightily by so few.”

(The whole benchslap is available on the next page.)

Texas Judge Blasts Justice Department Lawyers for Conduct in Immigration Case [National Law Journal]

Earlier: Judge Calls DOJ ‘Sons Of Bitches’ On The Record
Brutal Benchslap Tags DOJ Prosecutors As ‘Pretentious’ And ‘Inept’
When Humor In The Courtroom Isn’t Funny


[1] Aside from the purely ethical aspects of the opinion, in one move designed to sneak a little substance back into an order otherwise about ethics, Judge Hanen ordered the Justice Department to provide him a list of all the immigrants who received benefits so that he could, under certain conditions, leak it to the states so they could… I don’t know, crack heads?

Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.