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Odd Legal Ethics

In an order that the Volokh Conspiracy’s Orin Kerr has described as “puzzling,” U.S. District Judge Andrew Hanen has instructed U.S. Attorney General Loretta Lynch to institute a five-year ethics training program for any lawyer seeking to appear in any of the 26 states that participated in the immigration case now pending before the Supreme Court. Judge Hanen presided over the district court proceedings in that case.

In the course of those proceedings, DoJ lawyers repeatedly and deliberately lied to him and opposing counsel. On several occasions the lawyers assured the court that the government would not implement the president’s new and improved immigration policy before a certain date. As they knew very well, though, the government had already processed upward of 100,000 licenses under that policy. DoJ’s explanation is that its lawyers “lost focus on the fact.” That’s probably another lie. The point of withholding the information was to prevent the states from requesting a temporary restraining order: there’s nothing to restrain here, Judge. You don’t just “lose focus” on that non-fact.

What’s the appropriate remedy for that kind of conduct—an ethics program, complete with annual reports by an AG-appointed compliance officer? I doubt it (putting aside whether a district judge has authority to order that program.) The lawyers didn’t forget some obscure Professional Responsibility curlicue; they knowingly committed an obvious offense. These people don’t need training; they need sanctions with consequences. I’m pretty sure that that’s also Judge Hanen’s sense. So why this perplexing order?

In a saner day and age a judge might simply have reported the lawyers to their DoJ superiors. They’d be fired; and if you get fired by Ted Olson or someone with an equally refined, near-obsessive sense of propriety, you might not work again any time soon, at least not as a lawyer. Alternatively or additionally, a judge might have sanctioned the attorneys and referred them to their state bar.

What this order is meant to signal, and what in fact it says, is that we no longer have that kind of DoJ. The lawyers in this case didn’t freelance; they were ordered to lie as part of a plan to create facts on the ground before some ornery judge could obsess over legal technicalities. And Judge Hanen pointedly cites and discusses other recent cases in which appellate courts complained of and cracked down on comparable DoJ misconduct. For what it’s worth this is consistent with what I hear, with increasing frequency, from my friends in the appellate bar: you can no longer trust government attorneys to play it straight.

And suppose we name and shame and sanction the lawyers (and I for one do want to know their names): what then? Why, the spin machine—the same machine that “explains” the President’s Iran Policy or the Secretary of State’s email server—will inform us that a vindictive right-wing judge is seeking the ruin of reputable lawyers with impeccable Harvard Law School credentials and did you know some of them are gay and also the judge hates Dreamers, or whatever. And will those martyrs still find gainful employment? Oh, yes. It’s no impediment to skirt legal and ethical boundaries, to follow orders to that effect, and to take the fall if need be: it’s the price of admission to Hillary Clinton’s entourage.

While Mrs. Clinton is unique in having practiced this sort of “law” and politics for three-plus decades, it has also flourished under President Obama, and it would blossom under President Trump. To my mind it’s a byproduct of an executive, presidential and therefore highly personalized government, where incentives are of needs driven by loyalty rather than law. In that light it is fitting that Judge Hanen’s five-year order extends over the next president’s first term, when the actual offenders in this case will be doing deals for Citigroup or the Clinton Foundation. But it will take more than an ethics program to fix this.

Reader Discussion

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on May 24, 2016 at 14:45:46 pm

What makes you think it would flourish under President Trump? It's not a matter of individual loyalty so much as it is a kind of end justifying means in a clique who believes that progress involves the breaking and flouting of law. This is typical of the justifications of socialism.

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Abu Nudnik
on May 24, 2016 at 14:48:44 pm

If Hillary gets elected, expect more of this from the DOJ.

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Mark Pulliam
on May 24, 2016 at 17:56:30 pm

well, Professor Greve, I would only add that this sort of behavior may well be *solid* preparation for their eventual ascendance to the Bench where they may "spin" not only with impunity but with near universal approbation!!!!

We are now Europe, corrupt, venal, self-serving and mendacious. Mr. Madison, "Look what they have done to your song" (sung in a folksy blues sort of way).

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gabe
on June 05, 2016 at 17:21:05 pm

Ruth Marcus had a column for the NYT decrying Trump's disdain for the justice system and rule of law makes him unfit for the Presidency. And all I could think when I read it was "that ship already sailed". We are in a ends justify the means period of the office of POTUS regardless of who is elected in Nov.

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Roxanne Chester
on June 06, 2016 at 09:10:48 am

The fix is for defense attorneys in all federal cases in all 50 states to call as a witness the prosecuting attorney and go through for the jury the number of federal judges who have, in effect, determined that the DOJ is an institution filled with unethical, lying, snakes that are not to be trusted and for juries to start finding not guilty on that basis.

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TMLutas
on June 06, 2016 at 09:53:17 am

[…] Micheal Greve adds his take, which includes the disturbing statement that “For what it’s worth this is consistent with what I hear, with increasing frequency, from my friends in the appellate bar: you can no longer trust government attorneys to play it straight.” […]

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More on lying government lawyers – Leo Combat
on June 06, 2016 at 10:59:50 am

This shameful DOJ is protected by the mainstream media who turn a blind eye to this kind of criminality when it involves a Democrat administration. Most Americans will never hear about these crimes. Deep, deep rot in the political and media beltway.

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VoteOutIncumbents
on June 06, 2016 at 11:15:41 am

I believe the names of the offending attorneys can be determined by reading public pleadings in the instant case noting the names of the attorneys signing the pleadings. I have done this superficially but would not personally publish those names without confirmation that the attorneys of record are the same one who deceived the court.

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Ron Rust
on June 06, 2016 at 11:16:41 am

Why aren't these lying, dishonorable attorneys -- and their superiors who ordered or condoned this behavior -- being disbarred? There should be real consequences for the attorneys involved. This is just a slap on the wrist. Disbarment will get their attention -- and the attention of any other government lawyers who might be thinking about lying to a court.

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bpbatista
on June 06, 2016 at 11:21:50 am

"it is a kind of end justifying means in a clique who believes that progress involves the breaking and flouting of law. - See more at: http://www.libertylawsite.org/2016/05/24/odd-legal-ethics/#sthash.ZbpAijTN.dpuf"

You answered your question. Trump's entire career is built on skirting law.

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kwo
on June 06, 2016 at 11:33:21 am

In fairness (or actually lack of fairness) this behavior goes back to the GWB administration when Ted Stevens was railroaded out of office by unethical DOJ behavior that the bench loudly sanctioned. That crime directly led to the passage of ObamaCare. Under statist authoritarians our bureaucracy is a criminal enabler and under conservatives it's a saboteur.

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Bill Reeves
on June 06, 2016 at 12:54:33 pm

This is why I believe we should pull the accreditation of Harvard Law School. In fact, if the judge wanted to really do something positive, he would force Harvard to teach the ethics courses and insure that no one takes the bar exam without getting an A in this course. If, after all that, they continue to do this then the sanctions should include jail time.

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bflat879
on June 06, 2016 at 16:09:04 pm

You must possess a special kind of naivety or simply be a bald faced pretender to assign attorneys to take an ethics course. If, as officers of the court, they do not already possess the traits that reflect a commitment to ethical behavior, you cannot accomplish anything in terms of modifying that which constrains ( if anything does) their actions. The judge is simply going through the motions. The demonstrated lack of respect for law and judicial process can only be healed by hard time. Wake up, judge. This citizen has no respect for you, either.

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Harry J Taft
on June 06, 2016 at 19:39:59 pm

"flourish under Trump"
One wonders how many of these DOJ lawyers are graduates of Ivy League law schools one of which educated Obama who shows his contempt for the Constitution at every opportunity. Trump could do well to ignore Ivy League lawyers if he should become president.

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E.Patrick Mosman

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.