Convenient Facts: Nken v. Holder, The Solicitor General, and the Presentation of Internal Government Facts
63 Pages Posted: 5 Mar 2013 Last revised: 20 Sep 2013
Date Written: September 2013
In April 2012, facing a court order to disclose internal Justice Department e-mails, the Office of the Solicitor General (OSG) wrote to the United States Supreme Court in Nken v. Holder to admit that it had made a factual statement to the Court three years earlier about agency policy and practice that were not accurate. The statement had been based on e-mail communications between Justice Department and agency lawyers. In fact, the statement neither reflected the content of the e-mails nor the actual policy and practice of the relevant government agencies. The letter promised remedial measures and concluded by assuring the Court that the OSG took its responsibility of candor seriously.
The underlying factual representation by the OSG in Nken case was unusual because it attracted attention and lengthy FOIA litigation that led to the disclosure of the communications that served as the basis of the statement. But it is not at all unusual as an example of unsupported factual statements by government lawyers that are used to support legal arguments. Indeed, unsupported statements appear in OSG briefs on a wide range of issues. These statements benefit from the unusual position of the government: it has access to information not available to other litigants, and it benefits from a presumption of candor that endows its statements with a claim of self-evident authority that no private litigant could match.
The Nken case provides a unique opportunity to explore the consequences of judicial acceptance of fact statements provided by the OSG. Because of Freedom of Information Act litigation, we have an opportunity to examine how the OSG gathered information as well as the role played by government counsel at the Justice Department and the interested agencies. This examination shows multiple dangers with unsupported statements about internal government facts. It also demonstrates the difficulty of relying on lawyers representing the government to seek out and offer information that will undermine the government’s litigation position.
Prevention of misleading statements could be pursued through greater self-regulation, prohibition of extra-record factual statements or through a model of disclosure and rebuttal. This Article argues that the experience in Nken reflects the grave danger in presuming that self-regulation is an adequate safeguard against erroneous statements. It further argues that despite the appeal of a rigid rule that prohibits such statements, such an approach ignores the Court’s thirst for information about real world facts that are relevant to its decisions. The Article concludes by arguing that the best approach is to adopt a formal system of advance notice combined with access to the basis of government representations of fact.
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