Sending a Message

As reported last week in Politico, and re-reported a couple of days ago in the Guardian, the government filed a motion for sanctions against a lawyer who repeatedly sought a writ of habeas corpus blocking the deportation of his client to Laos. The sanctions motion is linked from the Politico article, but the exhibits to the motion are not included. I don’t have a PACER subscription and because this is an immigration case, per Fed. R. Civ. P. 5.2(c), the public sites like CourtListener do not provide access to documents filed in connection with this motion. Thus, for what I’m about to say here, I’m taking everything from the government’s motion. Read everything that follows with the proviso, “if what the government says is true . . .” and keeping in mind that DOJ lawyers have said many not-true things in immigration proceedings.

Much of the reaction to this sanctions motion sees it as part of the Trump Administration’s pattern of seeking to intimidate lawyers and law firms representing political opponents of Trump or anyone standing in the way of the execution of the massive deportation effort promised by Trump, Stephen Miller, and Tom Homan. The lawyer facing the sanctions motion compared it with the executive orders targeting AmLaw 100 law firms:

“It reminds me of the executive orders that are really targeting these big law firms,” Schroeder said in an interview. “They’re able to go all the way down to the very bottom, that’s where I am — no offense to myself. … It’s top to bottom. It’s not just this elite struggle.”

The Politico article references other retaliatory actions taken by Trump, such as stripping lawyers for political opponents of their security clearances. Remember that the ABA, represented by Susman Godfrey, has sued the administration alleging retaliatory actions pursuant to a “law firm intimidation policy,” designed to cow lawyers into avoiding representing clients or causes where the administration considers the representation to be contrary to the national interest or, in as the President put it in the law firm executive orders, constitute “baseless partisan attacks.”

Should this sanctions motion be seen as part of a pattern of trying to intimidate lawyers from taking on cases contrary to the Administration’s policy agenda? I think so, but if the government is telling the truth about what the lawyer did here, the reason is not that sanctions might not be warranted under different circumstances. In other words, the sanctions motion is not itself frivolous, although it’s a close call. What it is, however, is very much out of step with the traditional – and appropriate – reluctance of government lawyers to seek sanctions against counsel for individuals trying to protect important civil rights of their clients. In a fast-moving situation in which failure to act may result in a client being removed from the United States with no effective way of getting him back (cf. Abrego Garcia, Kilmar), a lawyer would reasonably include every possible ground for relief. That could include claims founded only on information and belief, particularly when there is good reason to suspect the government may be trying to pull a fast one. I see the filing of this motion as another example of this Administration’s break with the ethical norms that have traditionally been respected by government lawyers.

What is the DOJ Complaining About?

Summarizing the allegations in the government’s sanctions motion, with some comments:

(1) The lawyer made a frivolous contention that is client was being removed pursuant to the Alien Enemies Act (AEA), when he knew or should have known that the government was relying on removal authority under the Immigration and Nationality Act (INA). Okay, but look at the time frame. The immigrant was detained in April 2025 and his lawyer filed a petition for habeas corpus on May 25. Trump’s proclamation invoking the AEA as authority to deport members of the Venezuelan gang Tren de Aragua was signed on March 15. On May 16 the Supreme Court held that a court must provide some due process, including notice that the detainee is subject to removal under the AEA and “sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.”

The government argues that the lawyer could not have contended with any plausibility that his client was subject to removal under the AEA because his client was from Laos, not Venezuela. The initial invocation of the AEA was done in secret, however, and the government was keen to move deportees out of the United States before a court could exercise jurisdiction to enjoin the transfer. The Administration’s history of secret, rushed orders provided reasonable grounds for the lawyer in the case to be concerned that there may be additional, secret AEA proclamations covering nationals of countries other than Venezuela. The government is irate that the lawyer continued to enjoin his client’s removal under the AEA “despite knowing his removal is under the INA” (Sanctions Motion, p. 9; see also p. 17), but a prudent lawyer might very well have wanted to ensure that there was no secret AEA proclamation that the government was keeping in its back pocket.

(2) The lawyer’s arguments were frivolous because they claimed venue was proper in a district other than the Northern District of Texas. The Supreme Court held, on April 7, in J.G.G. v. Trump, that a claim that removal under the AEA violated a detainee’s constitutional rights must be brought as a petition for habeas corpus and that “venue lies in the district of confinement.” This principle invites a kind of shell game, where the government moves a detainee around to avoid a district with habeas jurisdiction. This was not an AEA removal case, but remember the Tufts University student who was facing removal to her home country of Turkey for allegedly engaging in activities supporting Hamas. (Actually she had only written an op-ed in the Tufts student newspaper.) She was picked up off the street in Boston, driven to New Hampshire and Vermont, and soon thereafter flown to Louisiana, presumably so that any challenge to her detention would be heard by a more sympathetic judge.

The Wall Street Journal recently described a pattern of detainee transfers by the Trump administration, with immigration lawyers objecting to a system in which “their clients are disappearing into an opaque and labyrinthine system that is obstructing their ability to defend themselves in court.” The policy of moving detainees around makes it more difficult for lawyers to contact their clients, file bond applications, or take other protective actions. A lawyer who knows about this practice by ICE would have a good reason to want to cover the bases by filing petitions to obtain jurisdiction in the district his client has been moved to.

(3) These arguments were in subjective bad faith, which is necessary for imposition of sanctions under 28 U.S.C. § 1927 and the court’s inherent authority. The government did not seek sanctions under Fed. R. Civ. P. 11, presumably because Rule 11 requires that the moving party serve the motion for sanctions on the opposing party but not file until the end of a 21-day period, during which time the opposing party may withdraw the submission. However, inherent-power sanctions under Chambers v. Nasco, Inc., 501 U.S. 32 (1991), require a showing of bad faith conduct, and the Supreme Court recently held in Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. ___ (2017), that inherent-power sanctions must be compensatory in nature, not punitive. Sanctions under Section 1927 are quite rare, and are almost never imposed outside the context of repeated or intentional bad faith conduct. Section 1927 sanctions require a showing of subjective bad faith, including knowingly or recklessly raising a frivolous argument for an improper purpose. Neither the statute nor inherent power sanctions are really intended to do Rule 11’s work of policing ordinary frivolous filings, which employs an objective bad faith standard.

The government calls the lawyer’s arguments such a clear departure from the standards of proper inquiry that would be made by a reasonable attorney under the circumstances that they amount to recklessness, i.e. subjective bad faith (Sanctions Motion, pp. 19-20). It claims the filings were for an improper purpose – blocking his client’s removal (p. 20) – although what else would an immigration lawyer be seeking to do in response to a removal order? Finally, it faults the lawyer’s “obduracy” in continuing to assert the claim that the AEA, not the INA, may be the government’s basis for removal (p. 21). The government also mis-cites Rule 11 cases for the proposition that inherent power sanctions may be imposed for deterrent purposes (p. 22). Nope. That argument is foreclosed by Goodyear v. Haeger.

Good and Bad Faith in Context

Although the government’s motion talks about the lawyer’s evasive answers at a hearing and improper assertions of jurisdiction, it’s clear from reading the whole thing that the DOJ’s main beef is with the contention that the government may be relying on the AEA:

Having been warned multiple times that his client had a valid removal order, Schroeder nevertheless persisted in delaying the lawful execution of that order, claiming without any basis in fact that the government was treating Lor as an alien enemy under the Proclamation (p. 22).¹

The DOJ’s repeated citation of Rule 11, in a motion in which they’re expressly not relying on Rule 11 (see also p. 23), is a kind of tell: At worst the objection to removal on AEA grounds is not supported by an adequate factual investigation. It’s not reckless, “vexatious,” or “oppressive” to persist in making an argument that a lawyer has some reason to believe may be valid. Not to put too fine a point on it, but the context for the lawyer’s assertions on behalf of his client is a persistent pattern of game-playing and defiance by the DOJ of courts in immigration matters. Rümeysa Öztürk and Kilmar Abrego Garcia are going to be on the minds of any competent immigration attorney.

The DOJ asserts that the lawyer’s conduct departed so substantially from reasonable profession norms that it amounts to subjective bad faith. But let’s turn it around: Imagine that you are the immigration lawyer in this context and you worry about defaulting a habeas claim by not making it in your filing with a court. You know your client is from Laos, not Venezuela, and the government has publicly said that the AEA applies only to Venezuelan nationals alleged to be members of TdA. Knowing of the misconduct detailed in the Erez Reuveni whistleblower disclosure, do you take the government’s word for it, or do you include the AEA claim just in case?

I would be quite surprised if the district court imposed sanctions in this case. I’m a former civil litigator and have read lots of Section 1927 and inherent power sanctions cases. Bad faith, for the purposes of these authorities, requires something much worse than what the lawyer did here. Maybe the lawyer’s conduct would violate Rule 11, with its more demanding objective standard of reasonableness, but the government didn’t rely on Rule 11. Why not? Again, probably because it was more interested in beating up on the lawyer than in having the lawyer withdraw the challenged contention. If the DOJ was so worried about the AEA arguments it could have served a Rule 11 motion and given the lawyer an opportunity to withdraw them. Instead, it is trying to sneak Rule 11-type arguments into a motion relying only on Section 1927 and Chambers v. Nasco. That ain’t cricket, and I expect the district court will see right thought it. Still, the effect on this lawyer is to have to go through the time and expense of responding to a sanctions motion, which is not trivial.

What I see as really going on here is blowback from repeated bad faith conduct, not by lawyers defending the constitutional rights of individuals but by government lawyers. The judicial misconduct complaint filed against District Judge Boasberg, signed by Pam Bondi’s chief of staff Chad Mizelle, was reportedly motivated by the Administration’s belief that Judge Boasberg’s private comments at a meeting of the Judicial Conference of the U.S. somehow violated the presumption of regularity, which is merely a commonsense presumption that government officials “have properly discharged their official duties.” United States v. Chem. Found., Inc., 272 U.S. 1, 15 (1926). But beginning in the Trump 1.0 Administration, courts began to question whether the government’s explanations for its actions were entirely truthful or candid. Judge Boasberg, or all people, has direct experience with the government’s attempts to mislead courts and prevent them from assessing the legality of government actions.

The DOJ is trying to send a message here. Not so much that lawyers representing opponents of the administration will be punished. That was the message of the law firm executive orders. While there may still be a “law firm intimidation policy” in effect, the message of this sanctions motion is that the government is extremely thin-skinned about allegations of bad faith conduct. One of the key concepts for understanding Trump himself is projection – the tendency to accuse opponents of the same misconduct he engages in. Trumpian projection seems to be an ethos that has influenced the thinking of some lawyers in the Justice Department.

In normal times the DOJ never would have filed a motion for sanctions in a case like this. Far better to simply argue for dismissal of the habeas petition and move on. It is a very unusual, very aggressive move to seek sanctions against a lawyer who was working under significant time pressure, in an uncertain and rapidly changing information environment, and dealing with opposing counsel and an Administration with a documented history of evasion and defiance of court orders. Pam Bondi is quite attached to the ideal of zealous advocacy for government lawyers, but seems to have forgotten that the great power of government lawyers should be exercised fairly and decently. As former U.S. Attorney General Robert Jackson said, to a gathering of U.S. Attorneys:

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just.

A spirit of fair play and decency would ordinarily counsel not seeking sanctions against a lawyer for an individual who was simply trying to protect his client’s rights. The DOJ should take the win, deport the immigrant to Laos, and leave it at that. But these aren’t normal times.

1. By the way, I don’t know whether the repeated use of the phrase “he nevertheless persisted” in the sanctions motion was intended as an allusion to Mitch McConnell’s interruption of Elizabeth Warren’s objection to the confirmation of Jeff Sessions as Attorney General in the Trump 1.0 Administration, and his statement that, despite being warned, “nevertheless, she persisted.” The phrase quickly became a feminist slogan in support of tenacious women who persist in making their voices heard despite being rebuked by men. Nah, I don’t think the lawyer intended that reference.