Cormac Carney knows when to throw a flag. As a former All-American receiver for the UCLA Bruins, he understood that the game can’t be played if the rules weren’t followed. He may wear black instead of black and white on the bench, but he gets it.
He got it in the Broadcom case, when he tossed the indictment against CFO William Ruehle and others. And he gets it again in Islamic Shura Council v. FBI, where the government tried to pull a fast one on him.
The Government’s in camera submission raises a very disturbing issue. The Government previously provided false and misleading information to the Court….There’s a novel concept, The law does not authorize the government to lie to judges. Not when the government thinks its a good idea. Not when the government utters the magic words, national security. Not when the government wants to. The government cannot lie to a judge.
The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.
The Government contends that the FOIA permits it to provide the Court with the same misinformation it provided to Plaintiffs regarding the existence of other responsive information or else the Government would compromise national security. That argument is indefensible.
You might think that this notion, the whole tell the truth to the judge thing, was pretty well settled. Obviously not. The difference here is that the government got caught lying. The trick is to figure out how often the government employed the same rationale for being deceptive, but didn’t get caught. If you don’t get caught, you didn’t lie, because you’re on the side of truth and justice and, in the infinite wisdom of the executive branch, are entitled to lie to judges when you believe that it’s in somebody’s best interest.
Judge Carney didn’t bite.
Jeff Gamso makes the point that the first kind of judge is the type who favors one side over the other, and it’s good when you happen to play for the right team. Judge Carney is what he calls the second type of judge.
But in absolute terms, I want a bench filled with the second sort. I’ll take some lumps (though I’ll win my share), but I’ll know, and so will everyone else who pays attention, that her courtroom is a place where the law is done right and where justice and mercy and fairness will actually reign.
There’s probably nobody out there who fully qualifies as that Platonic judge. But for fearlessness and a kind of rough integrity, Cormac Carney may be as close as they come.
High praise from a guy who stares down death on behalf of his clients on a regular basis. His clients may disagree, of course, as rough integrity may not necessarily cut in their favor, but Gamso rightly recognizes that Type One judges tend to favor the other team more than his. By a wide margin.
While Cormac Carney may well be “as close as they come,” however, there remains one nagging detail about this decision that excoriates the prosecution for contending that the government has the authority to lie to the court. Where’s the downside?
At the end of the order, three things are clear: The government was excoriated. The plaintiff got nothing. Everyone went home for dinner. As harsh as Judge Carney’s words may be, there was no carnage left lying in the road.
Granted, the court could not provide the plaintiff with the relief it sought. But aside from calling the government out on its lie, what disincentive is there for the government not to lie next time? More hard words? I hate to say it, but so what?
Without consequences, there is little reason for the government not to lie again when it serves its interests. This isn’t meant in the cynical sense, as in the government’s deliberate deception was done for malevolent reasons. I’m fully prepared to accept, at least for the sake of argument, that the lie was perpetrated for the most honorable of reasons. But it remains that the integrity of the legal system fails when the government can lie with impunity, doing only what it should have done in the first place if it gets caught. No harm, no foul.
Judge Carney, more than anyone, should know that unless the ball is placed at the location of the interference, there’s no incentive not to get tangled up in a lie in the hope that the ref is looking the other way.
Judge Cormac Carney may be “as close as they come” to Gamso’s second type of judge, and for that he’s to be thanked. But “as close as they come” may not be sufficient when something this outrageous happens and there’s no price to pay. Whoever decided, and argued, that the government has the authority to lie should be disciplined, likely disbarred, for deliberately lying to a federal judge. You can bet that would have happened if it was a defense lawyer who engaged in such behavior.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
If you or I had done that, you can guess how ugly things would immediately get. And rightfully so.
I’m thinking chances are slim we would have made it home for dinner that night.