S.Amdt. 4839

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.
______