Lawyers may not misrepresent facts to the court. FRCP Rule 11.
Department of Justice (DOJ) lawyers in particular have an obligation accurately to inform the court about executive branch action that is challenged as illegal or unconstitutional. Our civil liberties may turn on the court having accurate factual information about what the government is doing. A little over a year ago, some Obama Administration DOJ lawyers landed in hot water when a federal judge in Texas imposed sanctions for what he believed to be inaccurate representations about the President’s executive order on immigration
https://www.nytimes.com/2016/05/20/us/andrew-hanen-immigration-texas-court.html?_r=1
We may now confront a similar situation with President Trump’s travel ban. DOJ lawyers have asked the Supreme Court to reverse a lower court order striking down the travel ban as unconstitutional. The briefing in the case implies, if not outright says, that the Administration believes that the travel ban for which review is sought meets the security needs of the Country and conforms to the Constitution. The Court is not told that the Administration is seeking approval of this travel ban only for purposes of testing the waters, with the real intention of substituting another stricter ban in its place. The Court furthermore is not being told that it is a “travel ban” at all, such terminology being artfully avoided in the briefing papers.
President Trump’s Tweets now tell a different story.
The first issue is whether the DOJ lawyers knew or should have known of the President’s intentions on the travel ban, and in particular his intention to ask for a stricter travel ban. Did the DOJ lawyers know, at the time they submitted their briefing to the Supreme Court, that the President viewed the travel ban as being insufficient to protect the Country from terrorism? These are important issues for the Court to consider when deciding whether the travel ban is Constitutional under the circumstances (if it won’t work anyway because it is too “watered down” the Administration really should consider other options for keeping terrorists out of the United States). If the DOJ lawyers misrepresented material facts to the Court they should be sanctioned as the Obama DOJ lawyers were in the Texas immigration case. The Supreme Court should ask these lawyers what they knew and when about the Administration’s intentions on the travel ban (now that the President has openly admitted that it IS A TRAVEL BAN, the pretense that it is not can also be dispensed with). If the DOJ lawyers did not tell the Court what they knew about the travel ban, the Court should inquire as to why not.
The second issue is where to go from here. The Supreme Court is entitled to truthful disclosure of the Administration’s intentions with respect to the travel ban. If the Court approves it by reversing the lower court will the Administration implement the travel ban as it was described to the Court or will the Administration do something entirely different? Is the Administration’s plan to implement the first travel ban but then also seek to impose a stricter travel ban, with the advantage of knowing how each of the nine justices responded to the first one? If the President intends that this exercise in judicial review be only part of an incremental process of imposing ever stricter travel bans subject to judicial review in a series of cases, the Court is entitled to know that before it rules on this one. These are only some of the critically important facts that need to be disclosed by DOJ lawyers to the Court before it makes this decision. It is their professional responsibility to do so, and if they cannot be honest with the Court they should not be allowed to practice before it (admission to the bar of the Supreme Court is a privilege, not a right).
A manipulative child whose bedtime is eight may beg his parents to stay up until 9, and if successful use his knowledge of which arguments succeeded with which parent, to beg one or both of them to stay up until nine thirty and perhaps then ten. The child of course is not telling the truth if at eight he said that his intention was only to stay up until nine when in fact ten was his goal. Such games may or may not be appropriate with the kindergarten set. But that is not how the President is to deal with the Supreme Court. And DOJ lawyers certainly cannot play that game with him.