There’s been plenty of talk by judges about imposing sanctions on ICE and DOJ lawyers who have routinely violated court orders and constitutional rights, and straight up lied in court (or allowed agents and officers to lie in court). But not much has actually been done about this. So far, it’s mostly been threats of future punishment. But if there’s a sign of hope for the future, it’s this, even if “this” is a bit underwhelming. (h/t Kyle Cheney)
Sanctions are coming. Slowly. And almost comically. But it’s better than nothing, if only barely. A federal court in Arizona is finally going to “punish” an ICE lawyer for misconduct. The targeted wrist may barely feel the slap, but here it is, as delivered by federal judge Diane Humetewa in this recent court order [PDF].
The DOJ lawyer being hit with sanctions is Brooks Chupp, the Assistant US Attorney for the District of Arizona. Chupp is a Notre Dame graduate whose LinkedIn profile seems to have suddenly gone missing now that he’s been sanctioned by a federal court. According to his Notre Dame bio, Chupp served as a “research assistant” to Professor David Waddilove. It will surprise no one to know that Prof. Waddilove is a current contributor to The Federalist Society. (It will surprise everyone even less to learn that Waddilove claims to be a “legal historian,” despite apparently being far more focused on securing multiple degrees in “Theology.”)
That’s the background. This is how Chupp fucked up, leading to his being sanctioned by a federal court.
From the record here,the Court has little difficulty concluding that AUSA Chupp’s accusation against Petitioner’s counsel was factually baseless from an objective perspective. No evidence has been provided to support that Petitioner’s counsel “represented to ICE that Petitioner was not presently removable due to his pending motion before the Board of Immigration Appeals.” What evidence has been provided supports, at most, that Petitioner’s counsel informed the “El Paso field office” that Petitioner had an appeal pending with the BIA, but made no representation as to Petitioner’s removability. (Doc. 14-1 at 8). Objectively, there was no factual basis to assert that Petitioner’s counsel had “represented to ICE that Petitioner was not presently removable.”
[…]
This is not, as AUSA Chupp argues, an instance of “weak” evidence; it is an instance of no evidence. (Doc. 26 at 6). While AUSA Chupp may have desired to “preserve an argument based on an inference,” that inference was wholly unreasonable, unsupported by the evidence, and antithetical to the ethical rules that guide attorney conduct.
More simply put, AUSA Chupp lied to the court. Then he attempted to cover up his lies with factually unsupportable statements and inferences — things that are, of course, just more legally acceptable lies.
The court’s not going to put up with this, at least not from Brooks Chupp.
The Court has no difficulty concluding that AUSA Chupp’s accusation was, at the very least, negligent and possibly reckless. On its own this would be insufficient to justify finding a violation of Rule 11 here. Id. However, the Court further finds that the accusation was also frivolous.
[…]
Nor was the accusation here some minor or tangential fact, but was instead presented as a dispositive fact justifying Respondents’ continued detention of Petitioner and carrying with it the implication that Petitioner’s counsel had engaged in potentially criminal behavior. See 18 U.S.C. § 1001. As such, it required Petitioner to expend the effort and resources—in less than 24 hours—to secure a signed Declaration from his former counsel, complete with evidentiary support, and briefing in response. Only then, after that effort had been made, did AUSA Chupp “withdraw” the argument, and even then, only because he “d[id] not have specific records of what Petitioner’s attorney did or did not state.” Given these stakes and, as he himself recognizes, the “special role of AUSAs” (Doc. 26 at 2), the Court concludes—especially in light of how the accusation hardened from “unclear” on March 24 to “likely” on April 1 without any supportive evidence or reasonable investigation in the interim—that the accusation was both negligent and frivolous, and thus “tantamount to bad faith,” and, as such, in violation of Rule 11(b)(3).
So, what does this mean for this DOJ lawyer? Not a lot, unfortunately. I mean, he’ll be viewed as untrustworthy from now on (so expect a resignation or firing in the near future), but Chupp is only being ordered to spend a few hours being told things he already knows, but chose to ignore in hopes of pleasing the bloodthirsty bigots running/ruining the country at the moment.
The Court will therefore order that AUSA Chupp participate in at least one (1) hour each of continuing legal education on a) the special role of United States Attorneys and b) the need for evidentiary support for all factual contentions.
That’s it: two hours of CLE (Continuing Legal Education) that Chupp can likely apply to any outstanding CLE balance he might have racked up as a practicing attorney. As I said earlier, it is better than nothing. But not because it’s something other than nothing. On its own, it’s no deterrent at all. It practically suggests DOJ lawyers engage in lying and cheating because they’ll still have their jobs, their incomes, and their freedom, no matter how much they fuck with the legal system and fuck over people who just want their rights to be respected.
But it does do something, although it will be some time before we see whether or not it will have any effect. It breaks the seal, so to speak. It signals to other judges dealing with similarly slimy DOJ lawyers that sanctions can be brought and enforced. Any judge hesitating to be the first to do these things in their own jurisdictions should draw some courage from this turn of events, especially if the Trump administration decides it’s not worth its time to step in every time one of its lawyers is caught fucking up. Hopefully, there will be more of this in the near future, but only better, faster, and harder.
