With arguments before the Supreme Court in U.S. v. Texas ten days away, the docket in Brownsville keeps on chugging along. A few minutes ago, Judge Hannen issued an order, noting that “In the immediate future, this Court intends to issue an order concerning the misrepresentations made to it and Plaintiffs’ counsel by counsel for the Government.”
But even stranger, the government submitted four envelopes to the court to review in camera, but asked the court not to open envelopes two and three.
Defense counsel invited this Court to review the contents of Envelopes One (Government’s unredacted brief) and Four (non-privilege responsive documents) and it has done so. 1 The Government asked this Court not to review the contents of Envelopes Two and Three. The Court has honored that request as well. This Court has explained on at least one prior occasion that it was perplexed by the Government’s use of this unorthodox procedure.
Judge Hanen has now mailed the unopened envelopes back to the government. Unless the government sends them back by April 15 (three days before arguments), “the Court will assume the Government did not want them considered.”
I have no idea what is in these mystery envelopes, and it is very strange that the government would send the court documents in camera, but tell the Judge not to open it. Judge Hanen writes:
The Government’s request is the equivalent ofasking this Court to “take our word for it.” Given the fact that the conduct under consideration concerns multiple misrepresentations (to which the Government has admitted), this approach is not reassuring.
As an aside, this order is all the more surreal, because this was effectively my aborted April Fool’s joke. I photoshopped an order from Judge Hanen, directing the parties to appear in court to address issues of misconduct. On second thought, I determined that doctoring an order of the court was probably a bad idea, and spiked it. Instead I went with Nino’s Cafe at the new Antonin Scalia Law School. The intent of the joke was to make something just plausible enough, but outrageous, that people would believe. April Fools!