A kayaker walks past large buoys being used as a floating border barrier on the Rio Grande, Aug. 1, 2023, in Eagle Pass, Texas (AP Photo/Eric Gay).
An ongoing dispute between Texas and the federal government over a buoy barrier currently floating in the Rio Grande has taken a turn for the bizarre after an unusual and tense hearing unfolded this week in Austin that led to a strange confrontation between a judge who previously handled the case and, oddly, the Texas solicitor general — who did not.
The strange sequence of events in the case of United States v. Abbott started in July after the U.S. Court of Appeals for the Fifth Circuit issued an en banc ruling stating that Texas was allowed to keep a floating 1,000-foot barrier in place along a portion of the Rio Grande in Eagle Pass, Texas. The state argued it was necessary to stave off the flow of illegal immigration or drug smuggling. The U.S. government, which first sued Texas Gov. Greg Abbott in 2023 to remove the barriers, argued they were a violation of a federal law known as the River and Harbors Act of 1899.
The Fifth Circuit’s 11-7 ruling overturned a lower court ruling that sided with the federal government. The appeals court concluded that the specific stretch of the river at issue was not covered by that law because those waters aren’t technically navigable. Whether what is happening along the U.S.-Mexico border separately qualifies as an “invasion” that necessitates the barriers as Texas argues, however, was not addressed in the Fifth Circuit’s ruling to vacate an injunction issued by Senior U.S. District Judge David Ezra, an appointee of former President Ronald Reagan.
U.S. Circuit Judge Don R. Willett wrote the Fifth Circuit’s majority opinion, which recapped the path of the case so far.
Texas prosecutors wanted a jury trial in the matter but as records show, Ezra felt the case didn’t need one and instead set a bench trial for Aug. 6. This prompted Texas to file a petition for a writ of mandamus seeking to delay the start of the impending bench trial while an appellate court resolved whether a jury trial was necessary.
But before Texas could get its answer to that petition, Ezra responded to the request — and controversy ensued.
On Aug. 1, of his own accord and without any action yet taken by the Fifth Circuit — meaning, no mandate had been issued on their ruling — Ezra issued something he personally called an “Advisement to the Appropriate Panel of the U.S. Court of Appeals for the Fifth Circuit.”
But as noted in a comprehensive explainer on Reason by Josh Blackman, a constitutional law professor at the South Texas College of Law, this so-called “appropriate panel” is unknown — and further, Ezra’s “advisement” seemed to lurch wildly ahead of itself.
Without a mandate yet issued by the court, the judge expressed that he was inclined to grant Texas’ motion to continue. Going a step even further, he went on to explain his legal reasoning for why Texas may not deserve a jury trial, included new legal arguments, and then said he would likely grant Texas’s motion to continue the trial so that the Fifth Circuit could have “sufficient time to address the merits” of a mandamus petition in consultation with U.S. attorneys.
This set off alarm bells for Lanora Pettit, the Texas Principal Deputy Solicitor General, and she notified the Fifth Circuit about Ezra’s advisement.
Pettit told the Fifth Circuit that the federal government was no longer opposed to delaying the trial to a later date and if the Fifth Circuit promptly issued an administrative stay, and then another stay pending the court’s consideration of Texas’s mandamus petition, any “ambiguity” would clear up.
Ezra responded with another “advisement.”
This time the judge gave notice that he had granted Texas’s unopposed motion to continue the trial for 90 days, pushing matters well into October. The matter of whether there would be a jury trial instead of a bench trial was still unresolved, however.
So Pettit sent another letter to the Fifth Circuit and, this time, called out Ezra’s decision to continue the bench trial, saying it would be best for the higher court to set the pace rather than the lower court forcing others to adhere to “artificial deadlines.”
A status conference was held on Aug. 6 and as noted by Blackman, what transpired was increasingly strange.
First, Ezra asked the attorney representing Abbott, James Sullivan, to make an appearance in court though he had not been formally entered to argue on the case. Then Ezra addressed Sullivan multiple times, calling him “my buddy” and asking him if he wanted to make an appearance. Ezra also referred to the governor as a “very bright man” as he expressed doubt as to why Texas would want a jury trial instead of a bench trial.
“Unless it was just a way to delay the case,” Ezra remarked before adding that “a lot of people” were “shaking their heads on that one” though the judge did not say who those “people” might be.
Then the judge said he heard “chatter” from various “law professors and judges who have said that Judge Willett’s opinion is not precedential.”
He qualified that comment immediately though, saying it was not him who was saying that.
By the end of that status conference, a transcript shows Ezra then zeroed in directly on the Texas attorneys about the letters from the solicitor general.
“And I don’t want to put you in the same kind of squeeze play the State likes to put me in. By the way, I think that’s a bad practice. If I were you, I would not continue — I would talk to whoever is in charge of that and not do these letters to the judge saying, if you don’t rule by tomorrow at I’m doing this. It kind of sounds like a threat, and federal judges don’t do threats well. I think it’s not a good idea to do that. [I] have never in my entire 35, almost 36 years, on the bench had it done to me, except by the State of Texas twice now,” he said.
But as Blackman noted in his report, this is not that atypical: the U.S. Solicitor General often declares that it will go to the Supreme Court for relief if a lower court will not adhere to a deadline.
The judge then demanded, without reason, that Pettit come before him in 24 hours. She showed up with her own attorney, but not before issuing a third letter to the Fifth Circuit apprising the court of what unfolded.
According to the transcript, Ezra mentioned this letter during the hearing, saying that she had said he, “without prompting from either party,” raised the possibility that Willett’s opinion for the en banc Court “might not be precedential” and was based on unspecified voices and chatter the district court had either heard or read from ex parte sources who suggested that the opinion was not entirely clear.
“Although undersigned was not present, the district court reportedly opined that ‘[w]e have a 9-9 split’ because Chief Judge Richman ‘did not agree with the majority,’ and the separate opinion by Judge Ho ‘did not say anything at all,’” Pettit wrote before noting the judge’s order to the parties to file briefs by Sept. 20.
She again noted that Ezra provided new legal arguments and citations to decisions that neither party had raised, and that he “suggested either party might consider citing in support of an argument that the district court need not follow Judge Willett’s opinion in this case.”
Ezra laced into Pettit though he said he would not sanction her. He was not “mad” at her nor was he criticizing her personally, he said, but he did want to ask her about the letters.
She wouldn’t need an attorney, the judge told her.
But Pettit’s attorney told Ezra she did since he was actively questioning her, and this kicked off a tense exchange where the judge repeatedly and incorrectly insisted that Pettit had made an appearance in the case. The solicitor general’s attorney explained: Pettit had only entered her appearance at the appellate level — not the district.
“It doesn’t matter. We are one federal court sir,” Ezra retorted.
But this, as Blackman underlined, is not correct: lawyers admitted in one district are not automatically admitted in another.
Ezra declared at the hearing that he wasn’t asking Pettit to be a fact witness but merely to tell him about letters she wrote and why. It was another government lawyer who reminded him that his line of questioning was improper since internal deliberations at the attorney’s office are subject to privilege.
The judge disagreed, telling Pettit’s attorney if the letter was “publicly filed,” privilege did not apply, but as Pettit’s lawyer tried to explain, it was the deliberations that were privileged, not the letter itself.
“I have every right and obligation to address the matters that are in the letter, so you may be seated sir,” the judge erupted.
The transcript shows Ezra also called the Texas case “essentially closed” though a mandate has still not been issued. When Pettit’s attorney tried to lodge an objection to this, Ezra threatened to toss the lawyer from the courtroom.
“Counsel, listen. If you don’t listen to me, I’m going to have to ask you to step outside. I told you I would give you plenty of opportunity to address the court, and you will have that opportunity and I respect your opportunity to do so. But I can’t have you jumping up like a jack-in-the-box every two minutes. You’re not even a member of this court. You’re lucky that I’m even letting you say anything here,” Ezra said, according to the transcript.
As the hearing continued, as noted by Blackman, the judge opined that the letter may have been sent by Pettit because she intended to “alert” one of the judges who had not written on the issue to amend his opinion and there was an attempt to “influence” the court underway.
“This is an argument trying to get the Fifth Circuit, either Judge Willett to rewrite his opinion or to get Judge Ho to change his opinion or to get judge — Chief Judge Richman to somehow change her opinion. That’s what — I mean, it’s pretty obvious,” he said.
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