New updates to the ongoing lawsuit(s) about Commerce Secretary Wilbur Ross’s decision to include a citizenship question on the upcoming 2020 decennial questionnaire which hasn’t appeared on a Census survey since 1950.
In TNB’s September story we talked about “the first of six lawsuits” which included “more than two dozen states and cities” and voter’s rights advocacy groups could possibly be set for Nov 5 in U.S. District Judge Jesse Furman’s court.
During a court hearing at Manhattan federal court on Friday, U.S. District Judge Jesse Furman set the tentative start date for Nov. 5, adding that his “strong instinct” is that the two cases before him require a courtroom trial before he can issue a ruling.TNB via NPR; Sept 14 2018
Where TNB’s update left off October 6, according to ABC News, on September 21, Judge Furman had ordered that Ross could be deposed in preparation for the upcoming trial citing, “Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue” and had set the date for Oct 11.
The DOJ immediately appealed to the 2nd Circuit Court of Appeals to quash Judge Furman’s order, and according to The Hill, also appealed directly to the Supreme Court to block the order. In response, SC Justice Ginsburg, who oversees the NY based Second Circuit Court, “rejected” the DOJ’s application, without prejudice, saying that the DOJ had to let the Appeals court “play out first,” which was scheduled for Oct 9.
According to a Reuter’s report at that time the 2nd Court of Appeals had already denied the DOJ’s application to overturn the order for Assistant Attorney General John Gore to be deposed.
By October, NY Attorney General Barbara Underwood was leading 18 states challenging the Commerce Department, Wilbur Ross and the DOJ, saying, “that anti-immigration hardliners like Kansas Secretary of State Kris Kobach and ex-White House advisor Steve Bannon” pushed for the census question to be added for 2020, alleging Wilbur Ross lied in his sworn testimony before Congress in March of this year when he said ‘he had decided on his own “as a last minute decision” to add the question,’ when in fact, internal emails and memos showed Kobach and Bannon, among others, had pushed Ross to add the question in the 2020 Census questionnaire as early as February 2017 and with US Attorney General Jeff Sessions’ full knowledge, no later than September of 2017, therefore, knowing Commerce Sec. Ross had lied to Congress.
Working forward from there, on Oct 9, Courthouse News reported the three-judge panel of the Second Circuit Court of Appeals ruled against the DOJ upholding Judge Furman’s order Ross could be deposed.
“We find that the District Court did not clearly abuse its discretion in authorizing extra-record discovery based on a preliminary showing of ‘bad faith or improper behavior,’” the unsigned order from a three-judge panel states.
“The District Court, which is intimately familiar with the voluminous record, applied controlling case law and made detailed factual findings supporting its conclusion that Secretary Ross likely possesses unique firsthand knowledge central to the plaintiffs’ claims,” the 2-page order continues.Courthouse News; Oct 9 2018
With the Second Circuit’s order now played out, the DOJ returned to the Supreme Court and Justice Ginsburg granted a temporary stay on the DOJ Solicitor General Noel Francisco’s ‘emergency stay application” effectively “presses pause” for both Commerce Secretary Ross and Assistant Atty Gen John Gore to be deposed, Courthouse News reported Oct 10.
Meanwhile, with new Justice Brett Kavanaugh sworn in and seated, expectations and speculations grew that this could be “Kavanaugh’s first vote.” Politico reported this case was, “the kind of argument that could appeal to Kavanaugh, who has advocated broad interpretations of executive power,” adding, though “deferring to the Trump administration within days of joining the court could appear to confirm many of Kavanaugh’s critics’ claims that he’s likely to be a rubber stamp for Trump and his agenda.”
According to a DOJ filing with the Second Circuit as “Defendant’s Second Supplemental Response” to plaintiff’s interrogatories, filed on Oct 11, the DOJ admits Ross now “recalls” speaking to Steven Bannon and Atty Gen Sessions as early as “Spring of 2017.”
Secretary Ross recalls that Steven Bannon called Secretary Ross in the Spring of 2017 to ask Secretary Ross if he would be willing to speak to then Kansas Secretary of State Kris Koback about secretary Kobach’s ideas about a possible citizenship question on the decennial census. The Defendants therefore are also listing Mr. Bannon for the sake of completeness. In addition, Secretary Ross discussed the possible reinstatement of a citizenship question on the 2020 decennial census with Attorney General Sessions in the Spring of 2017 and at subsequent times.US District Court for the Southern District of New York; Oct 11 2018; pdf. pg. 2.
According to NPR, Monday evening the Supreme Court partially extended the stay, and while they did “temporarily” “shield” Ross, they are “allowing the plaintiffs’ attorneys to question” DOJ’s civil rights division acting Ass. Atty Gen John Gore, as well as allowing other “document requests from the plaintiffs can also move forward as the start date for the first potential trial … draws closer,” adding that, “the court’s order allows the administration to file additional requests for the high court to permanently block Ross’ deposition.”
Courthouse News writes, “though the order is unsigned, a concurring opinion from Justice Neil Gorsuch calls it “highly unusual,” to say the least,” that the government is expected to face a trial about this matter, one of agency action, beginning on Nov. 5.”
“Leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification,” Gorsuch wrote, joined by Justice Clarence Thomas. “As evidence of bad faith here, the district court cited evidence that Secretary Ross was predisposed to reinstate the citizenship question when he took office; that the Justice Department hadn’t expressed a desire for more detailed citizenship data until the Secretary solicited its views; that he overruled the objections of his agency’s career staff; and that he declined to order more testing of the question given its long history. But there’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape. Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary’s motives.”Courthouse News; Oct 23 2018
You can read the unsigned, SC four-page ruling written by SC Justice Neil Gorsuch, here.
A further development last night from NY’s Attorneys General office spokeswoman Amy Spitalnick bring us this addition last night.
On A Side Note (Opinion)
We’ll continue to watch this as we move closer to the first tentative trial date of Nov 5 District Court Judge Furman will preside over. There may be more maneuvers that take place before the end of the month as well, as Judge Furman has ordered both plaintiffs and defendants to submit status update reports.
There is a rumor this temporary partial stay was decided on a 5-4 vote, but because the ruling was unsigned, at this time, it cannot be verified.