DOJ reverses, says it's trying to find ways to include citizenship question on 2020 census

A lawyer with the Department of Justice (DOJ) said Wednesday that agency officials have been ordered to determine whether there is a way the administration can include a citizenship question on the 2020 census, hours after a tweet from President TrumpDonald John TrumpLiz Cheney: 'Send her back' chant 'inappropriate' but not about race, gender Booker: Trump is 'worse than a racist' Top Democrat insists country hasn't moved on from Mueller MORE raised confusion over the status of the question.

Joseph Hunt, an assistant attorney general with the DOJ’s civil division, said Wednesday that the department has been “instructed to examine whether there is a path forward, consistent with the Supreme Court's decision, that would allow us to include the citizenship question on the census.”

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“We think there may be a legally available path under the Supreme Court's decision. We're examining that, looking at near-term options to see whether that's viable and possible,” Hunt said, according to a transcript of a teleconference held in federal court in Maryland.

The DOJ official said the agency currently plans to file a motion in the Supreme Court that would “govern further proceedings in order to simplify and expedite the remaining litigation and provide clarity to the process going forward.”

“It’s very fluid at present because we are still examining the Supreme Court's decision to see if that option is still available to us,” Hunt added, according to the transcript.

Judge George Hazel, an Obama appointee, who is currently overseeing the federal lawsuit over the citizenship question in Maryland, gave the Trump administration until 2 p.m. Friday to say that it will no longer pursue adding the question to the census.

If not, he asked for a proposed schedule on how he should move forward on reviewing equal protection claims in relation to the question’s addition to the 2020 census.

During Wednesday's teleconference, lawyers opposing the citizenship question suggested that Hazel could issue an order that would halt further speculation about the citizenship question's status.

"Given the way in which this has developed and given the inconsistent statements that we're hearing from the Justice Department and the Commerce Department, on the one hand, and from the president on the other hand, we think that to effectuate the relief that we've sought, which is an injunction barring the inquiring of citizenship status on the 2020 census, this is the kind of relief that's necessary," Shankar Duraiswamy, who is representing some of the parties in the Maryland case, said on the call. "And it's appropriate and within the power of the court."

The call was held after Trump tweeted earlier Wednesday that his administration would continue to pursue adding the question to the 2020 census, after officials initially said Tuesday that the administration would drop that effort.

Hazel said during the call that he scheduled the conference in light of Trump’s tweet.

“I don't know how many federal judges have Twitter accounts, but I happen to be one of them, and I follow the president, and so I saw a tweet that directly contradicted the position” the DOJ had given the day before, Hazel said, according to the transcript.

“I think I'm actually being really reasonable here and just saying I need a final answer by Friday at 2 p.m. or we're going forward,” the judge said.

Hazel has been tasked with reviewing whether there was a discriminatory intent behind the citizenship question’s addition to the 2020 census, a different legal question than the one addressed by the Supreme Court last week. That case could potentially be dropped if it’s determined that the question won’t appear.

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Joshua Gardner, another DOJ lawyer, indicated during the call that he wasn’t aware of the change in status of the citizenship question efforts ahead of Trump’s tweet.

“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. I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted,” Gardner said. “But, obviously, as you can imagine, I am doing my absolute best to figure out what's going on.”

Judge Jesse Furman, in federal court in New York, has also given DOJ until 6 p.m. on Wednesday to state their “position and intentions” on the citizenship question.

That order came after groups challenging the question requested that Furman, an Obama appointee, hold an emergency hearing on the question’s status, citing the president’s tweet stating that the administration would continue to pursue adding the question to the 2020 census.

Trump administration officials had said Tuesday that the 2020 census would be printed without a citizenship question, but Trump’s tweet appeared to contradict those statements.

“Because this statement is not consistent with the representations Defendants’ counsel made to Plaintiffs and a federal court yesterday, and because proceeding with a citizenship question at this point would violate this Court’s injunction — which the Court retains jurisdiction to enforce — Plaintiffs request an immediate status conference so the Court and the parties can determine Defendants’ current position and whether any emergency relief is needed,” New York Attorney General Letitia James, the American Civil Liberties Union (ACLU) and other attorneys wrote.

Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), which is involved in the Maryland lawsuit, said in a statement that under the Trump administration, “there's no accounting for doubling down on stupid."

“Unfortunately, and embarrassingly for our nation, today's reversal from yesterday's certainty repeats the pattern of this entire affair, which began with Secretary Wilbur RossWilbur Louis RossHistory in the House: Congress weathers unprecedented week The Hill's 12:30 Report: 'Send her back' chants stun Washington The Hill's Morning Report - Trump seizes House impeachment vote to rally GOP MORE — who inexplicably remains in the Cabinet — lying to Congress and the public about the reason for the late attempted addition of a citizenship question to Census 2020,” Saenz said. 

“MALDEF is fully prepared to demonstrate in court that racism is the true motivation for adding the question, and by doing so, to prevent the question from appearing on the census."

Denise Hulett, the national senior counsel at MALDEF and the lead attorney for the group in the Maryland case, said that administration’s actions “will result in the same kind of misinformation that leads our communities to be reluctant to participate in the Census, at a time when the Census Bureau should be actively encouraging everyone’s full participation.” 

Hulett said that Trump's tweet "has some of the same effects that the addition of the question would in the first place and some of the same effects on the 18-month battle that was just waged over the citizenship question."

"So we strongly believe that we're going to need some affirmative commitment, whether it's through a stipulation or by order of this court, an affirmative commitment from the government to counter misinformation wherever in the government that it comes from, a commitment that they will respond quickly and comprehensively to that kind of misinformation," Hulett continued.

Hazel replied by saying that he didn't think the lawyers were asking him to "enjoin the president of the United States from tweeting things," adding that if so, it would "raise some concern."

However, Hazel raised the possibility of him issuing an order requiring "the Census Bureau or the Department of Commerce to take whatever steps are necessary to counteract any such message, which, again, I this is an odd place for the judiciary to be."

Gardner, the DOJ attorney, replied by noting that "this is a very fluid situation which we are trying to get our arms around."

Furman said in his order that he will determine whether an emergency hearing should be held after the Trump administration makes its filing.

The Supreme Court ruled 5-4 last week to block the citizenship question from appearing on the census for the time being, finding the administration’s argument that the question was needed to enforce the Voting Rights Act didn’t line up with evidence provided in the case.

Trump officials appeared to have conceded that the question wouldn’t appear on the 2020 census: Both the Justice Department and Commerce Secretary Wilbur Ross said Tuesday that printing would begin for census materials without a citizenship question.

But the president cast that outcome into doubt on Wednesday, when he tweeted that reporting based on his own administration’s statements was “fake news.”

“We are absolutely moving forward, as we must, because of the importance of the answer to this question,” Trump tweeted.

ACLU Voting Rights Project Director Dale Ho vowed Wednesday to continue fighting the issue in court.

"The Supreme Court ruled that the Trump administration’s effort to add a census citizenship question was illegal because it was based on a ‘contrived’ rationale. Despite that, and despite DOJ’s repeated statements that the census questionnaire cannot be changed after June 30, the administration is now examining whether it can concoct a ‘new rationale’ for its citizenship question," he said in a statement. "The answer is no, it cannot — at least not a legal one. Any attempt at an end run around the Supreme Court’s decision will be unsuccessful, and will be met swiftly in court.”

— Updated at 6:50 p.m.