A second federal judge has denied the Justice Department’s bid to withdraw its attorneys from the legal battle over adding a citizenship question to the 2020 Census, though he signaled Wednesday that he might ultimately allow the move if the new lawyers were prepared to address discrepancies between what the previous team had told the court and the Trump administration’s current posture.
U.S. District Judge George J. Hazel in Maryland wrote in a six-page order that he shared the concerns of a federal judge in New York who similarly blocked the Justice Department maneuver this week, but noted that in his district, unlike the other judge’s, attorneys do not have to provide “satisfactory reasons for withdrawal.” He wrote he was concerned that “a shift in counsel at this late stage may be disruptive to an already complicated and expedited case.”
But Hazel also wrote that he was “inclined to ultimately permit the withdrawal” — if the Justice Department would, among other things, provide assurances that the new team was “aware of and prepared to address potential conflicts between recent developments in this case and positions repeatedly taken before this Court by the withdrawing attorneys.”
The decision marks yet another headache for the Justice Department in what has become a fraught case. Earlier this week, the department sought to replace the team of lawyers assigned to it, after at least some career attorneys on the case grew frustrated with the Trump administration’s sudden shift in position on whether it could keep fighting.
That fight, which once seemed at its end, intensified Wednesday when a group of conservative lawmakers wrote a letter to Attorney General William P. Barr urging him to support President Trump adding the question to the census by executive order.
The letter controversially states that assessing the citizenship question is “germane to carrying out our duty to apportion representatives.”
The Trump administration has denied that adding the question is meant to boost its political fortunes through redistricting, but many Democrats charge that the question is meant to scare away Latinos from participating in the census, resulting in an undercount of that population.
The department filed motions this week to remove the lawyers in cases that are ongoing in multiple federal courts.
U.S. District Judge Jesse Furman of the Southern District of New York was the first judge to block the move, though he said the Justice Department could refile its request and provide more specific reasons for the change.
Hazel wrote that, because the Justice Department already had entered new lawyers into the case, his denying their request to replace the team would “not prevent the attorneys who have been representing the Defendants’ interests thus far from simply receding into the background as new counsel take the lead.”
He wrote he was “less focused on the formality of whose names appear at the bottom of future pleadings and more focused on the need for a transition of counsel that does not disrupt the orderly administration of justice.”
Hazel added that “while the Court is inclined to ultimately permit the withdrawal, under the unique circumstances of this request, more specific assurances will first need to be provided.”
The department, he wrote, would “need to provide specific assurances to the Court that one or more of the withdrawing attorneys are remaining available to the new DOJ team, as necessary, or provide detailed reasoning for why such an arrangement is untenable.” He questioned whether the new team could proceed without any help from the previous lawyers.
“As a practical matter, the Court cannot fathom how it would be possible, at this juncture, for a wholesale change in Defendants’ representation not to have some impact on the orderly resolution of these proceedings unless Defendants provide assurance of an orderly transition between the withdrawing attorneys and new counsel,” Hazel wrote. “This requires more than just the effort of the new DOJ team, but the involvement and availability of the withdrawing attorneys.”
Hazel also noted that the new lawyers should be prepared to address questions about the previous lawyers’ possibly misleading assertions to the court. Just last week, those lawyers believed the matter was over, because of an imminent deadline to start printing census forms and a Supreme Court decision that prevented the administration from adding a citizenship question. But Trump ordered the department to keep looking for ways to continue the fight, raising questions about what it had earlier told the court about the deadline.
“Defendants must realize that a change in counsel does not create a clean slate for a party to proceed as if prior representations made to the Court were not in fact made,” Hazel wrote. “A new DOJ team will need to be prepared to address these, and other, previous representations made by the withdrawing attorneys at the appropriate juncture.”
A Justice Department spokeswoman declined to comment.
Colby Itkowitz contributed to this report.