Department of Justice (DOJ) attorneys had led Judge Hanen to believe no implementation of the new rules would take effect before his February ruling. Judge Hanen then learned on March 4 that the administration had begun implementing the program in November of 2014. A March 4 DOJ "advisory" informed Judge Hanen that:
"more than 108,000 people had already received three-year reprieves from deportation and work permits. DOJ attorneys insisted the moves were made under 2012 guidelines and apologized for any confusion, but Hanen seemed unconvinced during a hearing last month and threatened to sanction the attorneys."Hanen rebuked the Government for misleading the Court in a ruling released last night.
"Clearly, if a "clarification" on any ongoing actions taken by the DHS [Department of Homeland Security] was ever necessary, which of course it was, [the January hearing] was the time. Silence here, and then later during the scheduling discussion, was misleading. Whether by ignorance, omission, purposeful misdirection, or because they were misled by their clients, the attorneys for the Government misrepresented the facts. The Court, relying on counsels' representations, not only gave the Government extra time for its briefing, but it also took February 18, 2015, as the agreed-upon date by which to rule on the motion for a temporary injunction."Though Judge Hanen showed his displeasure, there were no sanctions because, in his words, the issues have "national significance".
"Any number of federal judges, given this misconduct, would consider striking the Government's pleadings," Hanen concluded. Hanen said he would be tempted to do the same in this case, were the subject not so important. "The issues at stake here have national significance and deserve to be fully considered on the merits by the Fifth Circuit Court of Appeals and, in all probability, the Supreme Court of the United States," Hanen wrote. Throwing the case out now would "not only penalize those with an interest in the outcome, but would more importantly penalize the country, which needs and deserves a resolution on the merits."Certainly, throwing out the Government's case because of misconduct would mean a lot more trouble for the Government. But, that's how the law usually works. Misconduct by one side is punished, sometimes severely. Apparently for Judge Hanen there are cases too big to fail irrespective of Government misconduct.
One is reminded of the Government misconduct in the prosecution of former Senator Ted Stevens. The judge there vacated the verdict in 2009 but not before Stevens lost his 2008 re-election bid because of prosecutorial misconduct. (By the way, that lost seat paved the way for the hairsbreadth adoption of Obamacare by a filibuster proof vote in the Senate along party lines on December 24, 2009.)
However, the second shoe is yet to fall as Judge Hanen is still pursuing the issue with Government attorneys.
In a separate order, Hanen imposed an April 21 deadline for the Justice Department to submit information about the advisory it sent in March about the 108,000 three-year reprieves, including a list of people who knew about it.Still the lack of resolve to impose any sanctions at this point, even a contempt of court ruling, is troubling. Here's hoping Judge Hanen will find the resolve to punish conduct that he wouldn't blink an eye in punishing for less powerful players.