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"The U.S. Department of Justice submitted highly sensitive documents that included White House communications to a Texas federal court on Thursday in the case over the president’s executive actions on immigration, while arguing that government never meant to mislead the court on the policies' implementation and shouldn’t be sanctioned.
The DOJ said it submitted two sealed envelopes to the court, the first of which included all drafts of the government’s March 3 advisory to the court. The filing revealed that about 100,000 people had been given three-year periods of deferred deportation under the original 2012 Deferred Action for Childhood Arrivals program.
The envelope includes communications not only between DOJ and the Department of Homeland Security but also between the White House and the DOJ about the March 3 advisory, the department said.
“The Department of Justice and the White House Counsel’s Office sometimes confer regarding civil litigation that impacts high-priority policy initiatives of the administration,” the DOJ said in a footnote.
The second sealed envelope contains “purely internal White House documents” and a list of White House lawyers that the DOJ contacted about the advisory, the department said.
Despite providing these materials, the DOJ urged U.S. District Judge Andrew Hanen not to review them. It argued that drafts of court filings implicate attorney-client privilege and pointed out that the court would be reviewing attorneys’ discussions of litigation that is still before it.
The court should therefore think about referring a review of the documents to another judge to avoid any possible prejudice, the DOJ argued, and the 26 states bringing the case should be prevented from viewing the privileged materials.
The department argued that its public filing explaining the timing of the advisory, which was also submitted Thursday, as well as its privilege log, was a sufficient response to the court and that Judge Hanen therefore did not need to examine the 1,163 pages of privileged documents.
Judge Hanen ordered the agency to turn over “any and all drafts” of the advisory on April 7 after he was ruffled by how long the DOJ took to disclose that 108,081 individuals had received three-year deferred action.
The issue is a sticking point because the president’s executive actions expanded DACA from two to three years, and the federal government had repeatedly said it wouldn’t start taking applications for the expanded DACA program until Feb. 18.
The government says it stopped giving out three-year relief periods after Judge Hanen blocked the new programs on Feb. 16, but the DOJ’s decision not to reveal the expanded grants until about two weeks later raised Judge Hanen’s eyebrows.
In Thursday’s filing, the DOJ said its attorneys simply didn’t realize that the three-year deferrals were a significant issue with the timing of the injunction. The DOJ said it acted in good faith and pointed out that the 2014 deferred action guidance actually states that the three-year deferred action grants for 2012 DACA recipients would become effective Nov. 24.
The department argued that sanctions were unwarranted, saying that no misconduct had occurred and “the inquiry should end with this submission.”
Texas Attorney General Ken Paxton's office said Friday that the DOJ had provided "no substantive documents for review, instead producing a heavily-redacted, 200-page privilege log in which almost every responsive document was withheld from suing states, along with material that had already been made public."
"Regardless, we will continue to fight for the rule of law by asking the district court to carefully review the administration’s withheld documents and hold the DOJ accountable so they provide reliable information about this case, both to the court and to the states," the office said in a statement.
The DOJ declined to comment further on its filing on Friday.
The filings come as the Fifth Circuit mulls whether to lift Judge Hanen’s block on the policies, including expanded DACA and new, similar program for immigrant parents. The appeals court held arguments on the motion April 17, subjecting both the DOJ and the states’ attorneys to sharp questioning on issues of agency discretion.
The plaintiffs are represented by Angela V. Colmenero, Adam N. Bitter, John C. Barker and Eric Hudson of the Texas Attorney General’s Office.
The federal government is represented by Benjamin Mizer, Joyce Branda, August Flentje, Jennifer Ricketts James Gilligan and Daniel Schwei of the U.S. Department of Justice.
The case is Texas et al. v. U.S. et al., case number 1:14-cv-00254, in the U.S. District Court for the Southern District of Texas." - Allissa Wickham, May 1, 2015.