is
to
blame
for
this
material
misstatement
of
fact?
Not
the
SDNY!
(image
via
ChatGPT)
In
a
March
24
letter
to
Judge
P.
Kevin
Castel,
the
U.S.
Attorney’s
Office
for
the
Southern
District
of
New
York,
led
by
Jay
Clayton,
did
something
rather
remarkable.
Clayton
let
the
court
know
that
the
government’s
representations
about
a
material
fact
was
wrong.
Like,
completely
erroneous.
Yikestown.
The
federal
government’s
relationship
with
the
truth
in
the
Trump
II
era
when
standing
in
front
of
a
federal
judge
continues
to
be,
let’s
say,
flexible.
In
African
Communities
Together
v.
Lyons,
the
government
had
repeatedly
represented
in
both
briefing
and
oral
argument,
that
ICE
policy
restricted
immigration
arrests
in
or
near
courthouses.
That
position
leaned
heavily
on
a
2025
ICE
guidance
memo.
The
only
problem
with
that?
According
to
ICE,
that
policy
never
actually
applied
to
immigration
courts
regardless
of
where
they’re
located.
The
SDNY
is
now
“correct[ing]
a
material
mistaken
statement
of
fact,”
which
basically
involves
a
litigation
reset
as
the
government
has
to
withdraw
chunks
of
its
prior
filings
and
conceded
that
the
court’s
earlier
decision
(which
relied
on
those
representations)
will
now
have
to
be
revisited.
According
to
Clayton,
it
was
only
after
months
of
litigation,
briefing,
and
a
judicial
opinion
already
on
the
books
that
SDNY
learned
of
the
“regrettable
error”
that
“appears
to
have
occurred
because
of
agency
attorney
error.”
Back.
That.
Bus.
Up.
Seriously,
Clayton
is
not
being
subtle.
This
is
Jay
Clayton
tossing
ICE
under
the
nearest
available
bus
in
a
move
that
reads
like
reputational
self-preservation.
And,
to
be
fair,
you
can
see
why.
SDNY’s
brand
is
built
on
credibility.
When
that
starts
to
crack,
the
whole
enterprise
is
in
trouble.
Clayton’s
move
here
is
both
savvy
and
revealing.
By
documenting
that
SDNY
lawyers
relied
on
ICE’s
representations
—
and
even
got
sign-off
from
ICE
counsel
—
he’s
building
a
record
that
attempts
to
shield
his
office
from
judicial
ire.
It’s
a
preemptive
strike
against
the
inevitable
question…
How
the
fuck
did
you
let
this
happen?
But
the
cost
of
that
strategy
is
obvious.
It
publicly
exposes
a
breakdown
inside
the
federal
government
so
severe
that
one
component
can
mislead
another
into
misleading
a
federal
judge.
Judge
Castel’s
reaction
to
this
debacle
remains
to
be
seen.
Despite
Clayton’s
best
effort
to
save
the
SDNY’s
hide,
it
may
not
be
enough…
because
someone
sure
has
to
pay
for
the
wild
disrespect
of
the
judicial
process.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of
The
Jabot
podcast,
and
co-host
of
Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email
her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter
@Kathryn1 or
Mastodon
@[email protected].