Jiminy Fucking…

...Christmas:

On Monday, a Ninth Circuit Panel ruled 2-1 that Trump could send National Guard troops into Portland. We discussed that decision here if you want a refresher. The majority ruled that “After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority,” and declined to interfere with Trump’s ability to send troops into Portland. The state initiated the request for reconsideration of that decision.

The stay will remain in effect until October 28 while the judges on the Ninth Circuit determine whether the full court will revisit the panel decision. [The stay of the earlier stay; see below.] This is the sort of administrative stay courts use to freeze the status quo briefly when they’re deciding what to do next and doesn’t suggest how they may end up ruling. The order says explicitly, “This administrative order expresses no views on the merits of this matter and is not a reconsideration of the earlier stay order.” But it does confirm there is a process taking place among the judges to consider the en banc request, and that it was not dismissed out of hand. They note that the administrative stay was imposed “[W]ithout objection from the panel.”

Interestingly, though, on Thursday, the state of Oregon filed a letter brief with the court, advising of what the state characterized as “a material factual error by defendants on which the panel relied to grant a stay pending appeal.” The panel ruled in the administration’s favor because it had demonstrated “a colorable inability to execute federal law”—one of the preconditions the president must find exists before he can federalize National Guard troops. The state says that DOJ’s argument was contradicted by material DOJ turned over to the state in discovery Wednesday evening, and that representations DOJ made in court previously were false:

DOJ told the court that protests had forced the redeployment of 115 Federal Protection Service (FPS) officers, about 25% of the nationwide force, of DHS employees responsible for protecting federal buildings, to Portland.

At oral argument in the matter, DOJ emphasized that having the 115 FPS officers deployed away from their posts to Portland was unsustainable for the government. Counsel for the administration was asked whether all 115 of the officers remained in Portland. The response was that “some” had returned home, but “many” remained in Portland.

The state claims that in the discovery DOJ produced, it admitted that the “115 FPS officers have never been redeployed to Portland” and that “only a fraction of that number was ever in Portland at any given time before the President’s directive.”

Unless the government can explain the discrepancy satisfactorily, the court will likely want to inquire into the source of the misrepresentation. Deliberate false statements made to a court by a lawyer carry serious consequences. If it turns out that the government did, in fact, misrepresent the facts in court, that will not help the government’s position as the Ninth Circuit considers whether rehearing en banc is appropriate. The panel could withdraw its opinion if one of more of the judges in the original majority believes this new information changes the outcome of the appeal, or the en banc court consider the updated evidence if it proceeds.

Based on that:

Last night, the Ninth Circuit Court of Appeals reinstated, at least for now, Federal District Judge Karin Immergut’s first temporary restraining order, which prohibited the Trump administration from deploying the Oregon National Guard in Portland. It had been set aside, but the Circuit Court has put it back in place while determining whether the court will rehear the panel’s decision en banc.

The new order stays the previous stay (did you follow that? Don’t shoot me, I’m practically quoting the order of the court). Professor Vladeck says we can’t read anything into this, but he seems unaware of the letter brief from Oregon that seems to have changed the panel’s mind.

All I can say is, that I didn’t have a flawless and exemplary career before the Bar, but if I’d ever screwed up as badly as DOJ did here, I’d have been out of a job instanter, and anathema in the legal club of Austin lawyers. (Just misrepresenting the facts in court would be enough, whether I acted willfully, which would be fraud; or ignorantly, which is not an excuse.) I’m struggling to imagine an outcome where the panel doesn’t rip DOJ a new one (for lying to the panel, or lying in discovery), and lose the presumption of presidential regularity before the 29 member

court; or at least a majority of it. Judges trust lawyers not to lie to them; when they do, it’s not a trust easily regained, or a fault easily forgotten.

Professor Vladeck is right; we have to be careful reading anything into this. But if the Trump Administration is going to fall from grace in court (and inevitably, it is), this may well be the tipping point. I’ll hedge that by saying the court may not think this is that bad, but I stand by how bad it is for a lawyer’s career.