Rare Instance of Transparency in DOJ Attorney Misconduct

Updated May 31, 2016

“The misconduct in this case was intentional, serious and material. In fact, it is hard to imagine a more serious, more calculated plan of unethical conduct.”

Last week, an order and opinion by United States District Judge Andrew S. Hanen was full of harsh reprimands, including the above statement, for the Department of Justice attorneys in Texas v. US, a case revolving around the Department of Homeland Security’s implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

While attorney misconduct is as old as the practice of law itself, misconduct at DOJ should not be dismissed simply as an unavoidable occurrence. The Office of Professional Responsibility (OPR) was created to investigate any allegations that DOJ lawyers are not practicing law in a manner consistent with the laws, rules, and guidelines that govern their professional conduct.

For fiscal years 2002 through 2013, the OPR documented more than 650 infractions by DOJ attorneys according to a Project On Government Oversight review of data obtained through the Freedom of Information Act and from OPR reports.

Unfortunately, as a general practice, the DOJ does not make public the names of attorneys who acted improperly or the names of defendants whose cases may have been affected by the misconduct. The result: the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability, which appears to be sorely needed based on Judge Hanen’s further comments.

Judge Hanen states that “the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.”

This misrepresentation changed the course of the underlying case and persuaded the Plaintiffs not to pursue a speedy injunction of the government action they wanted to halt. An injunction is a court order requiring a person to do or cease doing a specific action, and because the DOJ attorneys told the court that DHS was not engaged in the undesired behavior, the injunction hearing was held at a later date than the Plaintiffs originally asked for, and then later deferred again. The government later admitted that the attorneys making the misleading statements knew that the statements were false.

Judge Hanen wrote, “there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department.”

It is certainly hard to have confidence in OPR’s ability to make sure DOJ attorneys are acting in adherence to those duties when you see significant evidence that they are not and little evidence that OPR has done much to address the problem. Although OPR has expanded its pro-active disclosure by including statistics in its annual reports on the types of misconduct found in cases it closed during a given year, this reporting is not enough and does not give enough information to determine whether DOJ attorneys have been properly held responsible for their misconduct. OPR still doesn’t name the attorneys who have committed misconduct.

This case provides a compelling narrative about gross misconduct of government attorneys. Unfortunately, the problem goes beyond this case and needs to be addressed by OPR. We shouldn’t have to count on a judge to expose taxpayer-funded attorney misconduct.

POGO reached out to the DOJ Press Office for comment on this piece. They did not respond.

Update: Since the publishing of this blog, the Department of Justice has responded to Judge Hanen’s order, stating that DOJ attorneys did not intentionally mislead or lie to the court. The Department also maintains that Judge Hanen’s order was “wrong, and made worse by (and perhaps explained by) the absence of the required fair process for the Department and its attorneys.” It is requesting a stay of the Judge’s sanctions pending review.