Court Battles

Trump's legal battles over census go public

The Trump administration's internal legal struggles to add a question on citizenship to the 2020 census are spilling out into the open.

The Department of Justice (DOJ) announced late Sunday that it was cleaning house on the team of lawyers that have spent the past year defending the citizenship question in court. That move came just days after DOJ attorneys told a federal judge that they were caught off guard by President Trump's announcement that he still wanted the question on the census after the Supreme Court ruled against it. 

The Department of Justice made the changes official in court filings on Monday evening, asking the existing attorneys to be pulled from the cases in California, Maryland and New York and replaced with different DOJ lawyers.

 

David Morell, the head of DOJ's Consumer Protection Branch, will now lead the agency's legal actions in the census cases, according to the documents. 

Legal experts were shocked by the decision to change attorneys. But it may have been the only way the administration could continue pushing for the citizenship question in court.

"This development is ominous," tweeted Rick Hasen, a law professor at the University of California-Irvine. "It almost certainly means the career attorneys working for the Department of Justice refused to go along with what Trump wants to do now with the citizenship question on the census."

DOJ lawyers had repeatedly stated in court filings that they needed to resolve the lawsuits challenging the citizenship question by the end of June in order to reach a census printing deadline. The Supreme Court itself took up the case on an expedited schedule given the census's timing, and then ruled against the administration.

Trump then said he could delay the census and that he wanted officials to try to add the question despite the court's decision.

Speculation has been rampant over whether career Justice Department lawyers had refused to try to effectively get around a Supreme Court ruling, or if they or their bosses believed they were no longer believable to judges hearing their arguments.

"It almost certainly means that some or all of the lawyers involved in the cases are unwilling to contribute to or sign briefs that will contradict the representations DOJ, and the SG [solicitor general], have made to the courts," Marty Lederman, a law professor at Georgetown Law, wrote in a blog post Monday.

The drama is playing out as the administration weighs whether to add the citizenship question to the 2020 census, materials for which are already being printed. Trump has indicated that he has several options on the table, including issuing an executive order.

The administration's approach to the citizenship question has changed several times since the Supreme Court's 5-4 decision against it.

The court's conservative justices agreed that Commerce Secretary Wilbur Ross, who oversees the census, had the authority to add the question to the census. But Chief Justice John Roberts joined the liberal justices in finding that the reasoning given for the question - enforcing the Voting Rights Act - didn't line up with the evidence in the case.

However, they left open the possibility that Ross could provide another reason for adding the question to the census, despite government lawyers arguing before three different district courts and the Supreme Court itself that the Voting Rights Act was the only motivation behind the question.

The DOJ had a June 30 deadline it said needed to be made to send final census documents to the printer. Government attorneys cited that date time and time again in rushing the case through the courts, and Roberts pointed to it in his opinion as well.

Last week, the DOJ seemed to give up on efforts to add the question given that deadline. And department lawyers appeared to be caught off guard by Trump's July 3 tweet that the administration is "absolutely moving forward" with efforts to add the question to the 2020 census.

One DOJ lawyer on a teleconference with the court following Trump's tweets, Joshua Gardner, said Trump's tweet was "the first I had heard of the president's position on this issue."

"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," Gardner said.

Judge George Hazel, the Obama appointee in Maryland overseeing one of the citizenship question lawsuits, indicated on the call that he may have questions about how DOJ lawyers' assertions to him were lining up with the reality of the administration's intentions and actions.

"If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from Mark Zuckerberg telling me something else, I would be demanding that Mark Zuckerberg appear in court with you the next time because I would be saying I don't think you speak for your client anymore," Hazel said during last week's teleconference.

Lederman wrote in his post Monday that it's possible that Justice Department lawyers could claim that the June deadline given to the Supreme Court was erroneous or no longer stands. But he said doing so could significantly damage the administration's standing with the justices - particularly the reputation of the solicitor general, who represents the federal government with the court.

"I realize that by now nothing should surprise me, but I would be shocked if DOJ filed a brief such as this, because it would have a devastating impact on the credibility of the Office of the Solicitor General with the Supreme Court," he wrote.

It's also not the first time Justice Department lawyers have been put in a tough spot as they defend the administration's policies.

One career DOJ attorney, Joel McElvain, resigned last year when the Justice Department, under the direction of former Attorney General Jeff Sessions, announced that it would no longer defend the Affordable Care Act in court.

Another Justice Department lawyer faced criticism after she suggested before a panel of judges last month that migrant children didn't need some basic amenities like soap and toothbrushes, in defending the administration's treatment of the minors. That lawyer, Sarah Fabian, later pushed back against the characterization of her comments in a private Facebook post, according to NBC News.

The new attorneys are sure to need time to familiarize themselves with the multiple cases playing out in several federal courts.

Hazel, as well as judges in New York and California, previously blocked the citizenship question from appearing on the 2020 census.

Those judges now face requests from opponents who want to make sure the question doesn't appear on the 2020 census. Challengers to the question in federal court in New York made that request in a court filing made Friday.

"The Trump administration repeatedly argued the census forms could not be altered after June 30. They've now changed their tune because the Supreme Court ruled against them," Dale Ho, the head of the American Civil Liberties Union's Voting Rights Project, said in a statement.

"They can't have it both ways."

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