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This is pretty unprecedented is it not? I don't think there's ever been a case where the DOJ was caught with it's hands this dirty before.

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In 2012, the DOJ had to send a letter to the Supreme Court to admit misstatements made in its briefing in an immigration case:

http://www.justice.gov/osg/briefs/2008/3mer/2mer/2008-0681.m...

Additional details: http://thecaucus.blogs.nytimes.com/2012/04/24/justice-depart...

The Nken case seems like an overconfident description by a lawyer of various informal policies and practices that together point fuzzily in one direction. Clapper seems rather less ambiguous.

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