2016 Court order on unethical behavior in US Department Of Justice

Make place in history for a good guy: Andrew Scott Hanen.  Andrew Scott Hanen is an  United States federal judge having the cojones to call foul on US department of Justice and require United States Attorney General Loretta Lynch to take action against unethical behavior in the Department of Justice.

The following court order is a must read – and we do not have to be lawyers to understand the dire implications:

STATE OF TEXAS, et al., versus UNITED STATES OF AMERICA, et. al. – Court order

The introduction to that court order is fantastic:

An exchange between two characters from a recent popular film exemplifies what this case is, and has been, about:

FBI Agent Hoffman: Don’t go Boy Scout on me. We don’t have a rulebook here.

Attorney James Donovan: You’re Agent Hoffman, yeah?

FBI Agent Hoffman: Yeah.

Attorney James Donovan: German extraction?

FBI Agent Hoffman: Yeah, so?

Attorney James Donovan: My name’s Donovan, Irish, both sides, mother and father. I’m Irish, you’re German, but what makes us both Americans? Just one thing . . . the rulebook. We call it the Constitution and we agree to the rules and that’s what makes us Americans. It’s all that makes us Americans, so don’t tell me there’s no rulebook . . . .

I didn´t know court orders could be like this. I sense a historical document. The court order continues:

Whether it be the Constitution or statutory law, this entire case, at least in this Court, has been about allegiance to the rulebook. In its prior orders concerning the actual subject matter of this case, the Court never reached the relative merits or lack thereof of the Defendants’ 2014 Department of Homeland Security (“DHS”) Directive. The question addressed by this Court was whether the Government had to play by the rules. This Court held that it did. The Fifth Circuit has now also held that the Government must play by the rules, and, of course, that decision is now before the Supreme Court. It was no surprise to this Court, or quite frankly to any experienced legal observer, that this question would ultimately reach the Supreme Court. Consequently, the resolution of whether the Executive Branch can ignore and/or act contrary to existing law or whether it must play by the rulebook now rests entirely with that Court.

The court order leave no doubt about the failure of the government lawyers:

The duties of a Government lawyer, and in fact of any lawyer, are threefold:
(1) tell the truth;
(2) do not mislead the Court; and
(3) do not allow the Court to be misled
…
The Government’s lawyers failed on all three fronts.

“This Court has found no authority to support the concept that it is ever ethical and appropriate conduct to mislead a court and opposing counsel; nor has the Government provided any authority to that effect. That being the case, the Court finds no need for a comprehensive dissertation on the duty of candor and honesty because counsel in this case failed miserably at both. The Government’s lawyers in this case clearly violated their ethical duties.

To say that the Government acted contrary to its multiple assurances to this Court is, at best, an understatement …. This Court finds that the misrepresentations detailed above:
(1) were false;
(2) were made in bad faith; and
(3) misled both the Court and the Plaintiff States.”

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.

There is no doubt that this court order reveals an unethical behavior by Department of Justice that is beyond being punishable by any court:

Regardless of how unprofessional the Department Of Justice’s conduct may have been, this Court will not strike the Government’s pleadings.

And this is a beauty – revealing extreme arrogance by the United States government:

The Government’s counsel told this Court that if it sanctions the misconduct of the Government’s attorneys in a monetary fashion, those sanctions would be paid by the taxpayers of the United States.

I´m laughing beverage through my nose 🙂 – The court order goes on to explain why it would be silly to fine United States government:

Thus, the taxpayers of the 26 Plaintiff States, who have been wronged by the misconduct, would have to pay for:

(1) the original fees, expenses and costs of their own attorneys;
(2) a large percentage of the original fees, expenses and costs of opposing counsel;
(3) the fees, expenses and costs of their own counsel caused by the misconduct;
(4) a large percentage of the fees, expenses and costs of the opposing side caused by the misconduct; plus
(5) a substantial portion of whatever sanction amount this Court would levy.

Stated another way, the Court would be imposing more costs on the aggrieved parties, and the Justice Department, which is actually responsible for this mess, would go unscathed.

The court further explains that the Government would learn nothing by being fined:

There would be no corrective effect and no motivation for the Government’s lawyers to act more appropriately in the future. Since the taxpayers would foot the bill for any fines, fining counsel would not make the Plaintiff States whole, serve as a deterrent to any future misconduct, or act as a punishment for any past transgressions. Therefore, this Court will not impose monetary sanctions on the defense counsel.

I´m laughing beverage through my tear channels now – or am I crying?
I´m not sure – maybe both!

The court order leaves no doubt about an unethical culture in the Department Of Justice:

Moreover, counsel for the Government should not be rewarded for their past misconduct. There is certainly no indication that counsel will not repeat this conduct.

Clearly, there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department.

The need to tell the truth, especially in court, was obvious to a fictional young Tommy Mara Jr. in 1947, yet there are certain attorneys in the Justice Department who apparently have not received that message, or more likely have just decided they are above such trivial concepts.

The point that the end result never justifies misconduct is also made clear by the court:

While this Court does not hold the Department of Justice attorneys to a higher standard than it would attorneys practicing elsewhere, it would hope that the Justice Department, itself, would seek to maintain the highest ethical standards. The Justice Department purports to represent all Americans—not just those who are in favor of whatever actions the Department is seeking to prosecute or defend. The end result never justifies misconduct. That is the stance the Justice Department takes daily in thousands of its other cases, and it is no less applicable here.

Judge Andrew Scott Hanen has been facing a dilemma:

• Unethical conduct by Department of Justice attorneys and counsels
• Unethical organization culture in the Department of Justice
• Fining Department Of Justice would increase the tax burden on Americans
• The department Of Justice would be unscathed by being fined!!!

His solution to this dilemma is brilliant:

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.

It will be hard to object to this after having seen the argument put forward by Judge Hanen:

this Court’s Order is requiring no more than what the Justice Department should have been, but obviously is not effectively, doing already. This Order will merely ensure compliance with the legal standards already placed upon Justice Department attorneys.

Judge Hanen also realized that it will not be sufficient to send all Justice Department attorneys on a yearly course. There must exist a problem with the organizational culture in the department of justice. The following definition of organizational culture may give and idea about the challenge at hand:

A culture is a way of perceiving, thinking and acting – which has been learned, developed or discovered by an organization – while learning to deal with its internal and external challenges – and which is being taught to it´s members as the right way of perceiving, thinking and acting.

Imagine a Department of Justice having developed a culture with lying counsels and attorneys!

And – bear in mind that organization cultures are unimaginable hard to change.

One thing which is absolutely essential for the change of organizational culture is the commitment of the top management.

That´s why I think Judge Hanen demonstrates both wit and wisdom:

Therefore, the Attorney General is hereby ordered to report to this Court in sixty (60) days with a comprehensive plan to prevent this unethical conduct from ever occurring again.

That´s a good start – a plan to prevent unethical conduct from ever occuring again!

And if Department Of Justice would even think about giving sole responsibility of solving the cultural problem to the  “Office of Professional Responsibility” – Judge Hanen put an effective stop to that:

Finally, whatever it is that the Department of Justice Office of Professional Responsibility has been doing, it has not been effective. The Office of Professional Responsibility purports to have as its mission, according to the Department of Justice’s website, the duty to ensure that Department of Justice attorneys “perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency … Its lawyers in this case did not meet the most basic expectations.

What Judge Hanen choose to do is exactly what President Obama should have done 7 years ago, and not only with Department of Justice but with every department in the government of United States:

The Attorney General is hereby ordered to inform this Court within sixty (60) days of what steps she is taking to ensure that the Office of Professional Responsibility effectively polices the conduct of the Justice Department lawyers and appropriately disciplines those whose actions fall below the standards that the American people rightfully expect from their Department of Justice.

Finally Judge Hanen urges United States attorney general Loretta Lynch to take action:

The Court cannot help but hope that the new Attorney General, being a former United States Attorney, would also believe strongly that it is the duty of Department Of Justice attorneys to act honestly in all of their dealings with a court, with opposing counsel and with the American people.

(The name of United States attorney general really makes me wonder – how on earth could United States end up with and attorney general with the name “lynch”? She really should have changed her last name – to Justice – or whatever name she would like.)

I like quotes which effectively express my opinion about the issue at hand. To this issue, I find that the following quotes express my opinion:

“None but a people advanced to a high state of moral and intellectual excellence are capable in a civilized condition of forming and maintaining free governments, and among those who are so far advanced, very few indeed have had the good fortune to form constitutions capable of endurance.”
– John C. Calhoun

“Every generation gets the Constitution that it deserves. As the central preoccupations of an era make their way into the legal system, the Supreme Court eventually weighs in, and nine lawyers in robes become oracles of our national identity. ”
– Noah Feldman

Finally I would like to join Judge Hanen in urging United States attorney general Loretta Lynch to lead the way out of the cultural quagmire. This is what Loretta said about here self when taking the oath of office:

“Because I am here to tell you, if a little girl from North Carolina who used to tell her grandfather in the fields to lift her up on the back of his mule, so she could see “way up high, Granddaddy,” can become the chief law enforcement officer of the United States of America, then we can do anything.”

I sincerely hope that you have not become afraid of mules little girl – you will have to rein in this beast. It´s time to lay aside all the unimportant things, It´s time for you to impose upon government the ethical standards we teach our children.

Let us never forget the man with principles, wit, wisdom and cojones:

Andrew Scott Hanen

Kudos.