Granting federal prosecutors the "discretion" to choose as a matter of policy what laws they favor and what laws they do not favor is just fine, right?
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.