[Congressional Record Volume 162, Number 99 (Tuesday, June 21, 2016)]
[Senate]
[Page S4424]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 4839. Mr. SASSE submitted an amendment intended to be proposed to 
amendment SA 4685 proposed by Mr. Shelby (for himself and Ms. Mikulski) 
to the bill H.R. 2578, making appropriations for the Departments of 
Commerce and Justice, Science, and Related Agencies for the fiscal year 
ending September 30, 2016, and for other purposes; which was ordered to 
lie on the table; as follows:

       At the appropriate place, insert the following:
       Sec. ___. (a) Congress finds the following:
       (1) On May 19, 2016, United States district court judge 
     Andrew Hanen issued an order finding that Department of 
     Justice lawyers made a number of intentionally false 
     statements to defend the Accountability Immigration Executive 
     Action of the President.
       (2) Judge Hanen stated the lawyers lied to the court 3 
     distinct times:
       (A) Lie #1.--On December 19, 2014, Department of Justice 
     lawyers asked to push a hearing back to January, assuring the 
     court that no applications to the Deferred Action for 
     Childhood Arrivals program (in this section referred to as 
     ``DACA'') program would be approved. (``This was not a curve 
     ball thrown by the Government; this was a spitball which 
     neither the Plaintiff States nor the Court would learn of 
     until March 3, 2015.''. Texas v. United States, Civil No. B-
     14-254, 2016 WL 3211803, at *5 (S.D. Tex. May 19, 2016).)
       (B) Lie #2.--In January 2015, Department of Justice lawyers 
     told the court no applications for DACA would be accepted 
     until February 18, 2015, and no action would be taken on them 
     until March 4--meanwhile 100,000 applications had already 
     been approved.
       (C) Lie #3.--On February 23, 2015, a week after an 
     injunction was issued, Department of Justice lawyers filed a 
     brief stating that DACA applications were set to begin on 
     March 3, despite the fact that the Department of Homeland 
     Security started processing them in late November 2014. 
     (``Yet counsel, who knew of the DHS activity, were not only 
     silent, but their motion was certainly calculated to give the 
     impression that nothing was happening or had happened 
     pursuant to the 2014 DHS Directive--when, in fact, by that 
     time over 100,000 applications had already been granted.'' 
     Id. at *7.)
       (3) Judge Hanen drew the following conclusions:
       (A) ``[T]he 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. . . . Such conduct is certainly not worthy of any 
     department whose name includes the word `Justice.' ''. Id. at 
     *3.
       (B) ``The United States Department of Justice . . . has now 
     admitted making statements that clearly did not match the 
     facts. It has admitted that the lawyers who made these 
     statements had knowledge of the truth when they made these 
     misstatements.''. Id. at *1.
       (C) ``These misrepresentations will be discussed in more 
     detail below; but suffice it to say the Government's 
     attorneys effectively misled the Plaintiff States into 
     foregoing a request for a temporary restraining order or an 
     earlier injunction hearing. Further, these misrepresentations 
     may have caused more damage in the intervening time period 
     and may cause additional damage in the future. Counsel's 
     misrepresentations also misdirected the Court as to the 
     timeline involved in the implementation of the 2014 DHS 
     Directive, which included the amendments to the Deferred 
     Action for Childhood Arrivals (`DACA')program.''. Id. at *2.
       (D) ``The Government's attorneys knew since late-November 
     of 2014 that the DHS was issuing three-year deferrals under 
     the 2014 DHS Directive. Whether it was one person or one 
     hundred thousand persons, the magnitude does not change a 
     lawyer's ethical obligations. 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. The actions of the DHS should have been 
     brought to the attention of the opposing counsel and the 
     Court as early as December 19, 2014. The failure of counsel 
     to do that constituted more than mere inadvertent omissions--
     it was intentionally deceptive. There is no de minimis rule 
     that applies to a lawyer's ethical obligation to tell the 
     truth.''. Id. at *7 (citation omitted).
       (E) ``The failure of counsel to inform the counsel for the 
     Plaintiff States and the Court of the DHS activity--activity 
     the Justice Department admittedly knew about--was clearly 
     unethical and clearly misled both counsel for the Plaintiff 
     States and the Court.''. Id. at *9.
       (F) ``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.''. Id. at 
     *10.
       (G) ``In fact, it is hard to imagine a more serious, more 
     calculated plan of unethical conduct.''. Id. at *11.
       (b) It is the sense of Congress that the conduct of the 
     Department of Justice lawyers is unbecoming of 
     representatives of the highest-ranking law enforcement 
     officer in the United States.
                                 ______