The Justice Department is swapping out the lawyers who had been representing the administration in its legal battle to put a question about citizenship on the 2020 Census, possibly signaling career attorneys’ legal or ethical concerns over the maneuvering ordered by President Trump. “If you won’t do it, we’ll find someone who will!”
The Washington Post reports, Justice Department changing lawyers on census case:
The department announced the move in a statement, which was issued after The Washington Post inquired about whether the career lawyers on the team planned to withdraw. A person familiar with the matter, who spoke on the condition of anonymity to discuss internal deliberations, said that at least some of the career attorneys harbored concerns about the administration’s handling of the case — although the nature of those concerns and how widespread they were could not immediately be learned.
“As will be reflected in filings tomorrow in the census-related cases, the Department of Justice is shifting these matters to a new team of Civil Division lawyers going forward,” Justice Department spokeswoman Kerri Kupec said. “Since these cases began, the lawyers representing the United States in these cases have given countless hours to defending the Commerce Department and have consistently demonstrated the highest professionalism, integrity and skill inside and outside the courtroom. The attorney general appreciates that service, thanks them for their work on these important matters and is confident that the new team will carry on in the same exemplary fashion as the cases progress.”
For the unfamiliar, this is a highly unusual move and should be setting off alarm bells. The judges in these cases will definitely take notice, and view it with suspicion.
The shift in lawyers will be reflected in simple withdrawal and appearance notices filed in court, a Justice Department official said. The official said the entire team on the case — both those in political positions and career employees who have served multiple administrations — will be replaced with political and career lawyers from the department’s Civil Division and Consumer Protection Branch. Several career members of the team declined to comment to The Post.
That the department also replaced those in political jobs signals there could have been other factors in the staffing shift beyond concern from career employees. At least one political official, James Burnham, had no objection to continuing on the case but supported the move to go with a new team, according to a Justice Department official, who spoke on the condition of anonymity to discuss internal matters.
The staffing change comes as the department is moving toward what some analysts say is increasingly unsteady legal ground in its bid to add the citizenship question, despite a Supreme Court decision that would seem to bar it from doing so.
I’d say so. The Trump administration has changed its story on the census citizenship question at least 10 times in four months. Any reason put forth by the administration at this point is plainly pretextual, and the judges in these cases know it. Trump said out loud last week the real reason for the citizenship question is “You need it for congress for districting, you need it for appropriations.” The Solicitor General specifically told the Supreme Court this was not why the administration wanted a citizenship question. Busted! The courts will take judicial notice of Trump’s admission against interest.
Less than a week ago, the Justice and Commerce departments had effectively conceded defeat, saying they were printing the census without the citizenship question and acknowledging even internally that the Supreme Court had given them no other choice. But the surrender infuriated Trump, who ordered the lawyers to do an about-face and come up with ways to keep the fight alive.
Trump said Friday that he was mulling an executive order to get the question added — a move pushed by some of his conservative allies, although legal analysts have said it would be unlikely to succeed in court. The forms for the 2020 Census are still being printed without a citizenship question.
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Justice Department lawyers had told those suing to block the citizenship question from being added that the 2020 Census would be printed without it, and internally, they thought they had no other options. When Trump tweeted last Wednesday that the case was “absolutely moving forward,” some lawyers on it were blindsided. [These lawyers are now being replaced.]
Appearing that day before a federal judge in Maryland, Justice Department attorney Joshua Gardner explained how he had always “endeavored to be as candid as possible with the Court” but that he did not know what was on Trump’s mind.
“The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor,” Gardner said to the judge, a transcript shows. “I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”
The case is not the first instance of a dramatic shake-up among Justice Department lawyers on a high-profile case in the Trump administration. Last year, a senior career Justice Department official resigned in the wake of the administration’s move to stop defending a key provision of the Affordable Care Act.
The ACA case is scheduled for oral argument before a panel of the Fifth Circuit Court of Appeals this week.
UPDATE 7/9/19: The Plaintiffs moved to block the Justice Department from changing lawyers in census citizenship case: The Trump administration has not demonstrated that the withdrawals “will not cause further disruption, particularly in light of the history of this case and the well-documented need for expeditious resolution,” attorneys for those challenging the citizenship question said in a court filing in New York.
A federal judge in New York on Tuesday denied a bid from the Justice Department to replace the team of lawyers on the census citizenship question case, writing that its request to do so was “patently deficient.”
The department had earlier this week announced its intention to swap out the legal team on the case — without saying exactly why. A person familiar with the matter said the decision was driven in part by frustration among at least some of the career lawyers who had been assigned to the case about how it was being handled, though the department wanted to replace those in both career and political positions.
But U.S. District Judge Jesse M. Furman denied the formal, legal bid to do so.
“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Furman wrote. He also noted that a filing in the case was due from the department in just three days, and that the department had previously pushed for the matter to be moved along quickly.
“If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time,” Furman wrote.
Furman said the department could refile its request, if it gave “satisfactory reasons” for the attorneys’ withdrawal and promise that the attorneys who had worked the case previously would be available upon request. The judge also asked the department to “file an affidavit providing unequivocal assurances that the substitution of counsel will not delay further litigation of this case (or any future related case).”
Furman did allow two attorneys, who had previously left the Justice Department, to be removed.
The judge’s decision was latest development in the continuing effort by the Trump administration to add a citizenship question to the 2020 Census.
UPDATE 7/11/19: A second federal judge has denied the Justice Department’s bid to withdraw its attorneys from the legal battle over adding a citizenship question to the 2020 Census. Second federal judge blocks Justice Dept. bid to replace census attorneys:
U.S. District Judge George J. Hazel in Maryland wrote in a six-page order that he shared the concerns of a federal judge in New York who similarly blocked the Justice Department maneuver this week, but noted that in his district, unlike the other judge’s, attorneys do not have to provide “satisfactory reasons for withdrawal.” He wrote he was concerned that “a shift in counsel at this late stage may be disruptive to an already complicated and expedited case.”
But Hazel also wrote that he was “inclined to ultimately permit the withdrawal” — if the Justice Department would, among other things, provide assurances that the new team was “aware of and prepared to address potential conflicts between recent developments in this case and positions repeatedly taken before this Court by the withdrawing attorneys.”