CAFE Insider Newsletter #31: Candor with the Court

CAFE Insider Newsletter #31: Candor with the Court

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Dear Reader,

It is not news that this administration imposes severe stress on the career lawyers at DOJ who must repeatedly twist themselves into logical pretzels to make courtroom arguments justifying White House policy decisions.

Lawyers again and again have had to choose whether they can live with making certain arguments in support of policies dictated from on high. It is not a novel dilemma; it happens from time to time. But like so many things lately, the frequency with which this ethical conundrum has arisen has no precedent in recent memory.

Just last month we saw a hapless DOJ attorney, Sarah Fabian, argue that the requirement of “safe and sanitary” conditions in detention centers at the border did not necessitate the provision of toothbrushes or soap. And a question loomed, both in the media and among my own circle of former DOJ friends: Would we have made that argument in open court? The unanimous answer was no.

This seems obvious to some, surprising to others. Obvious because it was a palpably stupid and immoral argument. Surprising because most laypeople believe lawyers make absurd arguments all the time. They are right. Not to cast aspersions, but the bread and butter of many criminal defense attorneys with no good response to overwhelming proof of guilt is to say anything short of outright lies in defense their client.

Every prosecutor can tell stories of absurd theories and arguments spun by defense lawyers in the spirit of zealous representation of a client (who may have, in fairness, insisted that the arguments be made). Not just absurd, but downright laughable. In a narcotics trial I had early in my career, my able adversary argued that his client’s request for “100” recorded on tape was not an order for 100 grams of heroin (which was the precise number of grams of heroin promptly delivered and intercepted by agents), but rather that the “100” was a reference to an order of $100 of Benny Hill video cassettes. I stifled laughter; some jurors did not. If you’re too young to get the reference, you should Google it.

The difference is this: the lawyers at DOJ are not just attorneys, not just members of the bar, not just zealous advocates, not even just officers of the court, but also public servants who are supposed to pursue only what is in the interests of justice. That means, among other things, that they must behave honorably and honestly with the court and with all the parties. We don’t want or expect them to merely meet the low standard of private lawyers whose approach is dictated by clients who are serial killers or Big Tobacco.

I’ll give you another example. Everyone is familiar with the scorched earth tactics some defendants will adopt to avoid liability for medical malpractice or personal injury. You may be surprised to learn that SDNY, my former office, often defended such cases because sometimes patients of VA hospitals were harmed by government doctors. The guiding principle for us – unlike with private hospitals – was not to minimize liability at all costs, but rather, if there was actual negligence or malpractice, to work out reasonable compensation. Their mission was to do the right thing, not the cheapest thing. That’s different from how it typically works in private practice, and it’s a difference I was proud of and that the public should be thankful for.

And so, in my view, government attorneys serving the public need to be concerned with more than the technical plausibility of any particular argument they make. They should not be throwing Hail Mary passes. They need to be concerned also with these two things: credibility and conscience.

Why am I making this point now? Because we have a new legal controversy, in a matter that we all thought was over: the census case.

Several weeks ago, the Supreme Court decided that though a citizenship question on the decennial census could be Constitutional, the administration’s proffered reasons in support (i.e., enforcement of the Voting Rights Act) were pretextual. And so even Chief Justice John Roberts could not abide it. He remanded the case back to the lower courts for further proceedings. In one of those courts, DOJ lawyers flatly said that in light of the decision there would be no citizenship question because it was too late as a practical matter; DOJ had represented that they needed the green light by June 30th, or it was a no go. They made that representation repeatedly. So game over.

But not so fast. Suddenly, last week President Trump tweeted – yes, tweeted – that such a decision was fake news and that there absolutely would be a citizenship question on the 2020 census. That, of course, flummoxed the public, the courts, and his own lawyers.

And then another twist: the DOJ lawyers who had long served on the census case withdrew (or were removed). Not one or two of them. All of them. Without public explanation. The best conjecture is that these lawyers, en masse, were concerned precisely with those two things I mentioned – credibility and conscience. Most likely they determined that they could not continue in good faith. In their place have been assigned a collection of attorneys from various divisions within the Department who have no expertise in the case and usually don’t handle such issues.

But this is also not the end of the story. To withdraw from a case, you need the judge’s permission. Usually that is pro forma, permission routinely granted. Not so here. The judge presiding over the SDNY case that went to the Supreme Court is Jesse Furman, and last night he surprised the legal world by denying the motion to withdraw and asked, consistent with the court’s rules, for the filing of affidavits explaining the reason for the wholesale switch. The ball is now in DOJ’s court, so to speak, and we may yet learn in the lawyers’ own words what crises of conscience and credibility drove them off this never-ending census matter.

And so maybe the withdrawal of literally the entire DOJ census litigation team – and Judge Furman’s demand for an explanation – will be a watershed. Let’s hope so.

My best,

Preet

POLICE ACCOUNTABILITY

SAN ANTONIO, TEXAS – DECEMBER 11, 2018: Two police officers stand in the plaza in front of The Alamo in San Antonio, Texas. (Photo by Robert Alexander/Getty Images)

Democratic presidential candidate Julián Castro is calling on lawmakers to re-envision policing in this country. Specifically, Castro has proposed restricting the judge-made doctrine of “qualified immunity,” a defense public officials like police officers can invoke in civil rights lawsuits brought under 42 U.S.C. § 1983(“Section 1983”). Section 1983 allows people to sue for damages when state officials violate their Constitutional or other federal rights. The text of the statute reads, in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The Supreme Court has held that a law enforcement officer, acting in “good faith,” is entitled to qualified immunity when his or her actions do not violate a “clearly established” statutory or constitutional right of which a “reasonable person” in the defendant’s position, rather than with the benefit of 20/20 hindsight, would have known.

The doctrine has come under increased public scrutiny with recent high-profile cases of police misconduct that have illustrated how qualified immunity can often act as a shield to accountability.

According to Supreme Court precedent, the rationale behind the doctrine is to balance accountability with “the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably,” thus giving them the “breathing room to make reasonable but mistaken judgments about open legal questions.”

Opponents of qualified immunity argue that the doctrine is too broad, that the standard is too difficult for plaintiffs to overcome, and that scaling back the doctrine would result in more fair compensation for victims and greater accountability for official misconduct.

How much leeway should police officers have to violate a person’s constitutional rights while discharging their duties if their actions are reasonable under the circumstances and done in “good faith”?  Let us know your thoughts! Write to us at letters@cafe.com or respond to this email.

DECRIMINALIZING ILLEGAL BORDER ENTRY

RIO GRANDE CITY, TX – DECEMBER 07: A one-year-old from El Salvador clings to his mother after she turned themselves in to Border Patrol agents on December 7, 2015 near Rio Grande City, Texas. They had just illegally crossed the U.S.-Mexico border into Texas. The mother said she brought her son on the 24-day journey from El Salvador to escape violence in the Central American country. The number of migrant families and unaccompanied minors has again surged in recent months, even as the total number of illegal crossings nationwide has gone down over the previous year. (Photo by John Moore/Getty Images)

Julián Castro is also calling for the repeal of Section 1325, a part of Title 8 of the U.S. Code that makes it a misdemeanor to unlawfully enter the country. Castro has said that he is in favor of making illegal entry to the U.S. a civil infraction because he believes “that’s more effective than what we’re doing now,” which is “a total disaster” and “inhumane.”

Section 1325 was originally introduced in 1929 by the late South Carolina Senator Coleman Livingston Blease, a neo-Confederate and white supremacist. For most of the 20th century, the U.S. would treat an illegal border crossing as a civil violation. However, this changed under the Bush and Obama administrations. By 2016, immigration offenses accounted for half of federal criminal prosecutions.

Prosecution efforts ramped up in the Spring of 2018 when the Trump administration implemented its “zero tolerance” policy that used Section 1325 to go after all adults that illegally cross the U.S.-Mexico border. Because apprehended adults had to be brought before a judge and jailed, they were separated from any children they had arrived with since federal law prohibits children from being detained with their parents.

Before the “zero tolerance” policy, authorities applied their discretion at the border and generally only prosecuted migrants who had extensive criminal records or were suspected of human trafficking or gang ties. Fortunately, President Trump signed an executive order in June 2018 to end the administration’s policy of separating families who attempt to enter the country illegally, detaining families together “where appropriate and consistent with law and available resources.”

On the second night of the first presidential debate, moderator José Díaz-Balart asked the candidates if they support decriminalizing illegal border entry. The majority of the candidates were in favor of repealing Section 1325.

Pete Buttigieg, mayor of South Bend, Indiana, said: “That criminalization is the basis for family separation. You do away with that, it’s no longer possible.” Senator Elizabeth Warren of Massachusetts has also endorsed Castro’s proposal to repeal section 1325, going one step further in suggesting repeal of the law that makes illegally reentering after being deported a felony.

What are your thoughts on repealing Section 1325? Let us know by replying to this email or writing to us at letters@cafe.com.

THIS WEEK ON STAY TUNED

2020 presidential candidate Julián Castro is this week’s guest on Stay Tuned. He’s the former Mayor of San Antonio and served as the Secretary of Housing and Urban Development in President Obama’s cabinet.

In this sneak peek at the interview, Castro explains the key element of a successful leader:

As a leader, you have to be willing to—just like every leader wants to take the glory of success—you have to be willing to admit when you’ve made a mistake. We’re living through this time period, and especially with this president, where the whole game is: Don’t ever admit that you’re wrong. Don’t ever seem fallible. Don’t ever admit that you’ve made a mistake. Part of being a strong leader, and of getting stronger and growing as a leader, is being able to recognize when you’ve made a mistake and to take appropriate action.

Don’t forget to listen to this week’s episode. It drops this Thursday, July 11th.

FOLLOW

We couldn’t be prouder of our champions! The U.S. women won their second consecutive Women’s World Cup championship and secured their fourth World Cup title. People worldwide tuned in to watch the exciting tournament that had us on the edge of our seats. The fun is not over, though, as the U.S. team will embark on a multi-match victory tour next month. Follow @USWNT to keep up with these unbelievable athletes!

EPSTEIN & CON(CENSUS)

If you haven’t already, listen to the latest episode of the CAFE Insider podcast: “Epstein & Con(Census),” Preet and Anne break down the sex trafficking case brought by SDNY prosecutors against disgraced billionaire Jeffrey Epstein and the latest on the 2020 Census debacle.

To add your unique Insider Podcast feed to your favorite podcast app, follow these instructions.

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at letters@cafe.com with your thoughts, suggestions, and questions.

— The CAFE Team

Tamara Sepper, Carla Pierini, Julia Doyle, Calvin Lord, and Vinay Basti

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