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Federal Judge Refuses to Allow DOJ to Switch Lawyers in Census Case
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10 Jul 2019 04:43 PM EST

By Laura Tucker, Staff writer; Image: Department of Justice Seal (Image source: Public domain)


The Justice Department is hitting another dead end in their fight to add a citizenship question to the 2020 census. Every time they think they have a way in, someone strikes them down. After they thought they would try switching tactics and attorneys, a federal judge has struck down that idea and denied their request. 

Many see this move to add the citizenship question to the census as a political move. It's thought it will scare undocumented immigrants into not answering the questionnaire, and with immigrants being left-leaning in their voting, this would lead to redistricting, leaving less Democratic representation in that area.


Added to that, after Thomas Hofeller, a Republican redistricting strategist, died, files were found on his hard drives that showed he had conversations with the Trump administration about adding a citizenship question to the census. His thought was that it would create an electoral advantage for Republicans and non-Hispanic white voters. 

Initially, the administration said adding the question would help the DOJ enforce the Voting Rights Act. This argument was knocked down in a few lower courts, then the Supreme Court weighed in and questioned the administration's motive in adding the question and put the issue on hold.


With a printing deadline encroaching, the administration announced they were not going to keep fighting it, but Trump insisted they would and that he could do it with an executive order.  

The DOJ announced they were picking up the case again with different attorneys, with rumors circulating that some of the career attorneys on the case had concerns with how the administration was handling the case.


U.S. District Judge Jesse M. Furman denied the DOJ's formal, legal bid to swap out attorneys. 

"Defendants provide no reasons, let alone 'satisfactory reasons,' for the substitution of counsel," he wrote, adding that the department was due to submit a filing in just three days and that they had previously wanted this to move through the courts quickly.


"If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time," Furman wrote. 

He said the DOJ could refile its request if it provided "satisfactory reasons" for the original attorneys to be removed from the case and if it promises they would be available upon request. He 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)."


Two attorneys who had previously worked on the case but who left the DOJ or its Civil Division were allowed by Furman to be removed. 

Trump was unhappy with this turn of events, tweeting, "So now the Obama-appointed judge on the census case (Are you a citizen of the United States?) won't let the Justice Department use the lawyers that it wants to use. Could this be a first?" 

This request is showing how the issue of the citizenship question has completely turned around the DOJ, with some of the attorneys believed to be objecting to the way it is being handled. But the department will have to not leave the reasons for their removal to conjecture and will have to detail them if they want to proceed.


An election law professor at Loyola Law School, Justin Levitt, who had previously been a deputy assistant attorney general in the Department of Justice's Civil Rights Division from 2015 through 2017, said he'd never seen the DOJ swap an entire team in the middle of litigating a case before. 

He finds it particularly odd, as the original team was filled with experts in administrative procedure who were very knowledgeable on the details of the case. The new team, comprised of attorneys from the consumer protection, civil fraud, and office of immigration litigation divisions, is a "truly random assortment," he added.


"It's a hodgepodge of people whose roles have absolutely nothing to do with the conduct of the census or with proper administrative procedure," said Levitt. That should give everybody pause about what's coming next." 

Republicans are still supporting the administration's move to add the question. 

White House counselor Kellyanne Conway said Tuesday, "The census in the past ... has been increasingly responsive to changes in American demography," adding, "I ask that all the time, what are you afraid of? Why wouldn't you want to know who's living in this country and who's a citizen and who's not a citizen?"


"Of all the questions we ask, this should be one of the most basic," said Sen. Kevin Cramer (R-ND), a Trump ally. "All hands ought to be on deck to get this done." 

Outside of the court battle with the DOJ, the House is set to vote before leaving for their August recess to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt of Congress for not obeying subpoenas related to the decision to add the question. The White House has invoked executive privilege regarding the information.

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