Politico reports that the Department of Justice is replacing the lawyers defending the Trump administration’s aim to add a citizenship question to the 2020 census.
The announcement, which came Sunday night, gives no indication of the reason behind the shift in personnel or whether the lawyers quit or were fired. The New York Times points out that such a replacement in such a consequential legal battle is practically unprecedented.
Kerri Kupec, spokeswoman for the Department of Justice, said in the statement, “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. 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.”
The shakeup comes after difficult moments in court for the administration’s lawyers, who were left defending the president’s tweets in front of the judge. Joshua Gardner, a DOJ lawyer, had told the court the administration was not pursuing the citizenship question further. He and other government lawyers were forced to explain President Trump’s tweet in which he stated that he had instructed the Departments of Commerce and Justice to carry on in pursuit of including the citizenship question.
In the transcript of the conference call that was released to the public, Gardner said, “I’ve been with the United States Department of Justice for 16 years, through multiple Administrations, and I’ve always endeavored to be as candid as possible with the court. 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.”
According to the New York Times, Justin Levitt, a former DOJ official in Obama’s administration, said, “There is no reason they would be taken off that case unless they saw what was coming down the road and said, ‘I won’t sign my name to that.’”
Trump has stated he is considering options that would allow the citizenship question to be included.
One option is an addendum, which, according to census consultant Terri Ann Lowenthal, would be an unprecedented interruption of the census proscess. She told Reuters, “Any suggestion that on a moment’s notice the Census Bureau could add an extra piece of paper with an additional question to a census that it has been planning literally for a decade demonstrates a breathtaking ignorance of what it takes to pull off a census.”
Other options are to delay the Constitutionally mandated process, offer the court a better rational than that which was slapped down already, or to force the issue via Executive Order. Legal experts told Reuters an Executive Order would not override the Supreme Court decision blocking the citizenship question from being included. Adding to the chaos, administration officials, including Commerce Secretary Wilbur Ross, had confirmed the census forms have already begun to be printed prior to Trump’s tweet.
Three federal judges and the Supreme Court have rejected Ross’s rationale for including the citizenship question on the census questionnaires per Politico. The administration’s position that the question is needed to provide data to aid the DOJ enforce voting rights was called “contrived” and a “distraction” by the Supreme Court. Any new rationale that might be submitted by the administration seems to be limited by the time frame of the census process and the unprecedented nature of the 15 month long legal battle.
