In all the cacaphony of the week — Bob Woodward’s book, the anonymous New York Times Op Ed, Manafort’s cooperation agreement (and guilty plea), Florence, Maria-denial, etc., you may have missed Attorney General Jeffrey Sessions’ speech on September 10 to new immigration judges. In it he took the opportunity to slander immigration lawyers, stating:
Good lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the INA [Immigration and Nationality Act] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.
Not very familiar with earthen dams, I nonetheless suspect that water seeping through one ruins the dam and causes great danger to those protected by it. The trickle of water turns into a flood as the protective dam erodes. The Attorney General is saying that lawyers are ruining the INA to advance their clients’ interests.
That advancing their clients’ interests is as serious as a failed dam is made clear later in the speech, when Mr. Sessions states:
Our system was not designed to handle thousands of new asylum claims every month from individuals who illegally flood across the border. But that is what has been happening, and it has overwhelmed the system.
When one talks about people as flooding in and overwhelming things, they are not considering people as human beings, but rather as an undifferentiatable evil force, a commodity, like water.
Human beings and water can be an evil force. Water of course is the source of something good, life. Human beings, most believe, are the highest form of life. One could certainly argue that more life-sustaining water and more human beings are good thing. Ask a farmer.
But lets get back to the slander, “Good lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests.” Attorney General Sessions is a lawyer. He was a prosecutor. He must know what lawyers do for a living. It is pandering for him to define the role of a lawyer so crassly.
Let’s start simply – the implication that advancing a client’s interest is an illegitimate objective. He knows better. He knows that advancing a client’s interest zealously is an attorney’s first duty. Attorneys certainly are constrained in their zeal – to be honest, to respect the tribunal, to avoid conflicts of interests with themselves and with clients, to keep confidences…. From the first day of law school, be it in Alabama or California or Washington, DC. attorneys learn, with little evidence, that our adversary system is the best way to get to the truth. There are other systems. If Mr. Sessions wants to start a discussion about the adversary system, it would be a very interesting one. He would, however, have no partisans among his ideological brethren who would likely argue that changing the adversary system is a giant step towards despotism, again, with little evidence. So this initial slander should be rejected out of hand.
Now for a little more complexity. Everyone knows (or is supposed to know for the Sessions analogy to work) what a dam does and what seeping water does to a dam. Not so with a statute, like the Immigration and Nationality Act, or, pray tell, the Constitution. The legal profession, from clients’ lawyers, to government prosecutors, to impartial judges are all in the business of figuring out what the law means. This can mean straying from “plain language” to make the law coherent or so it fits in with the overall scheme of the body of law.
It is not only the attorney for the individual that does this, the government attorneys do this all the time. The examples are ample. A good one is the stop-time rule. In many types of forms of relief from removal, there are time elements. One has to have been a resident of the United States of physically present in the United States for certain periods (seven years comes up a lot for some reason, probably biblical). The issue has always been what interrupts residency or physical presence. If a person travels to Mexico for lunch within the last seven years, is that interruptive? If a person is thrown over the border by a border patrolman and crosses back the next day, is that interruptive. The law evolved to a point where courts had to decide if a departure was “brief, casual, and innocent” to constitute a meaningful interruption. That tended to make a tough decision even tougher – what is brief, casual, or innocent? “Your honor, my client was gone for just 12 hours, which is brief. He went over the border just to eat lunch, which is innocent. He was wearing jeans, which is casual.”
In 1997, Congress, at INA § 240A(d), eliminated that metaphysical analysis and defined what interrupted physical presence and residence by fixed periods of absence and certain fixed events, like being placed in removal proceedings or committing certain crimes. The government did not like this abandonment of the older concept of brief, casual, and innocent, and, contrary to the plain words of the INA, fought successfully for courts to put the concept back into the law, like here.
Another more recent case. The INA says that to place an alien in removal proceedings (in most cases), a charging document must inform a non-citizen of “the time and place at which the proceedings will be held.” INA § 239(a)(1)(G). The government, for its own convenience, ignored these plain words of the INA and issued charging documents where the location and time of the hearing were omitted. Government attorneys defended this change and still do, even though the Supreme Court told them, essentially, to knock it off.
So, who is seeping water under the earthen dam in these cases? It is the government’s attorneys and not private-bar attorneys. If Mr. Sessions wants to end straying from plain meaning, a good place to start would be his own department.
Additionally, straying from plain words of the INA comes about for lots of good reasons – conflicts between statutes, like here, avoiding absurd results like here, and fairness (due process) concerns, like here. Mr. Sessions is clearly disingenuous if he thinks lawyers and judges should ignore these things.
Finally, if you were tasked with making a speech to new judges, what would you concentrate on? This is what I would concentrate on – being fair, being impartial, treating everyone with dignity, understanding the law, considering all argument, seeking justice. Like this guy.
Instead, in his speech, Mr. Sessions stressed efficiency, defended “zero tolerance,” and discussed implementing rules to deter abuse in the system. He conflated people with genuine fears for their lives with people committing immigration fraud. He conflated people surrendering themselves to an officer at the border with people seeking to enter the United States without inspection. He held up the INA as a workable and fair system, when it is universally accepted that it is not, like I dramatized here. This was not a “Justice, justice, you shall pursue” speech. It was a “let’s get these people deported quickly” speech.
Are the immigration courts backlogged? Is there abuse? Are there immigration attorneys who abuse their clients and the system? Yes, of course. Are there government attorneys and government officials that abuse the system? Yes. Mr. Sessions stated that the system is overwhelmed. He is the head of the justice department. If he finds the system ill-designed, he should fix the design. He should work with private attorneys to improve the system, not malign them. He should help people find justice (including to be safe in their own countries), not demonize them and belittle their fears and hardships and the dangers and challenges they face — “Indeed, Americans face serious problems every day also[!].”
Attorney General Sessions knows what lawyers do for a living. He sounds stupid when he pretends he does not. He does harm when he encourages judges to pretend they don’t either. Let’s hope these new judges perform their new jobs the way they have spent their professional lives perfecting how to and not by how their boss wants them to. Posted September 16, 2018.
Defending the adversarial system, contrary to the DNA of Jeff Sessions, is in the DNA of most lawyers. See, David Boies in the New York Times yesterday: “In America, this is an adversarial process,†he continued. “In many countries it’s not. History shows that no system does more to protect individual rights and liberties than a system that provides people with a lawyer with complete dedication to the client. A lawyer can choose what clients to represent. A lawyer does not have the choice of how to represent a client. A lawyer is duty- and honor-bound to represent a client effectively and aggressively [zealously], within the bounds of the system itself.”