Opinion

Alison Frankel

Rakoff: DOJ may have engaged in a ‘shuffle’ in SCOTUS brief

By Alison Frankel
February 13, 2012

The Solicitor General’s office of the Department of Justice is home to some of the smartest lawyers in the country. These are the people who represent the views of the United States in the most important public policy cases at the U.S. Supreme Court. They go on to head appellate practices at prestigious law firms — or to their own seats in the federal judiciary. Lawyers in the SG’s office are accustomed to deference.

Jed Rakoff, however, isn’t much for deference.

In a Feb. 7 ruling on a claim of attorney-client privilege in a Freedom of Information Act dispute, the Manhattan federal court senior judge conceded that when the Solicitor General’s office makes a representation to a court, “trustworthiness is presumed.” But Rakoff said that when he dug into the SG’s justification for an assertion in a 2009 case at the Supreme Court, he couldn’t find anything aside from some emails exchanged amongst lawyers in the office. “It seems the government’s lawyers were engaged in a bit of a shuffle,” the judge said.

He cited a Peter Finley Dunne aphorism — “Trust everybody but cut the cards” — but might just as well have quoted Ronald Reagan’s famous “Trust, but verify” (itself an adaptation of a Russian proverb favored by Vladimir Lenin). Because Rakoff couldn’t verify the SG’s assertion in the Supreme Court brief, except in emails over which the Justice Department was claiming privilege, he said privilege doesn’t shield parts of the emails.

The dispute stems from a brief filed in a case called Nken v. Mukasey, which posed the question of whether aliens are entitled to a stay of deportation orders until all their appeals are exhausted. In a January 2009 brief, the Solicitor General’s office assured the Supreme Court that the United States has a “policy and practice” of helping deported aliens who are subsequently cleared return to this country and “the status they had at the time of removal.” The Justices relied (in part) on that assurance in holding that aliens aren’t entitled to a stay because they aren’t irreparably harmed by deportation. (The case name changed to Nken v. Holder because President Obama had taken office when the opinion was issued in April 2009.)

The National Immigration Project, the American Civil Liberties Union and some other public interest groups had doubts about the asserted “policy and practice,” for which the Solicitor General’s brief didn’t offer a specific citation. So they filed a FOIA request with the Justice Department, the State Department and the Department of Homeland Security. The Solicitor General’s office produced only a four-page email chain, which was almost completely redacted. The Justice Department asserted three theories of privilege over the emails: work product, attorney-client, and deliberative-process.

The plaintiffs sued for access to the email, arguing that only the Solicitor General communications could clarify the supposed policy or reveal that the Justice Department mistakenly cited a policy that doesn’t exist.

Rakoff agreed, after reviewing the emails and the materials other arms of the government produced in response to the FOIA request. None of those materials, he found, indicated that the United States has a policy and practice of helping wrongfully deported aliens return to this country. Nor did a memorandum of understanding the Justice Department cited to Rakoff. “The OSG made a new factual representation on appeal and cited nothing in the record to support it,” he wrote. “The government even now has come forward with nothing of consequence to support its representation beyond the facts set forth in the emails.” (And Rakoff didn’t seem to consider the email chain very good justification: “As reviewed by the court in camera, evidences an attempt to cobble together a factual basis for making the representations the OSG made to the Court in Nken,” Rakoff wrote.)

Since the SG communications amounted to a statement of policy, Rakoff said, it can’t be shielded from the public. He ordered the disclosure of all portions of the emails that “contain factual descriptions of the putative policy.”

Gregory Garre, the Latham & Watkins partner who was Solicitor General when the Nken brief was filed and appears as counsel of record on the document, declined comment. I also left a phone message with Deputy Solicitor General Edwin Kneedler, who argued the Nken case at the Supreme Court, and with the Justice Department’s Office of Public Affairs. None of them got back to me.

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