The Supreme Court found late last month that the administration’s explanation for inclusion on the 2020 Census of a question asking about citizenship didn’t match the facts. In other words, Commerce Secretary Wilbur Ross lied when he said the Justice Department had initiated the process by asking for such a question to enforce the Voting Rights Act, a blatant misrepresentation.
Last week, things got even worse. The Post reports:
Government lawyers said in a filing Friday that the Justice and Commerce departments had been “instructed to examine whether there is a path forward” for the question and that if one was found they would file a motion in the Supreme Court to try to get the question on the survey to be sent to every U.S. household.
The administration, you see, just hasn’t figured out what that non-pretextual excuse is. Its position now raises several questions, including: 1) Did the Justice Department lie to the courts to get an expedited Supreme Court hearing by claiming the issue had to be resolved by June 30 and 2) Did the president give the game away when he told reporters the question was needed for reapportionment? As The Post reports, “Trump’s statement could give additional heft to information discovered in May suggesting the administration worked with a Republican redistricting strategist who saw the question as a way to give Republicans and non-Hispanic whites an electoral advantage.”
Ian Bassin, executive director of the nonpartisan nonprofit Protect Democracy, tells me, “There’s a term for trying to create a structural political advantage for ‘Republicans and non-Hispanic whites,’ and that term is ‘white power.’ And we now know that’s been the purpose all along for adding a citizenship question to the census.”
President Trump seems to think that by invoking “executive order,” he can make his legal problem disappear. Wrong. The Supreme Court disallowed the question for now and sent it back for the “real reason” for including the question. He cannot shout “Executive order!” and cure his legal problem.
Moreover, we know from evidence belatedly uncovered that the real reason was to produce a census that favored white voters and hence the Republican Party (thereby acknowledging that the party’s political survival is entirely dependent on artificially inflating the white share of the electorate). The government actually tried to halt discovery in a Maryland lawsuit over the census question while it comes up with a new explanation, a cheeky move slapped down by U.S. District Judge George J. Hazel. They want to keep litigating the real reason for the citizenship question? Fine, let’s have at it.
Constitutional scholar Laurence Tribe observes, “The district court’s refusal to go along with the antics of the Justice Department’s legal team has been a reassuring reminder that this dictator-admiring president has not yet succeeded in breaking the judicial guardrails completely.” However, Tribe argues that Trump “has left little doubt about his willingness to do so if he senses at any given moment that it would serve his theatrical or political interests — interests that he seems incapable of distinguishing.”
There is good reason for the plaintiffs to be optimistic about their chances. “The court vacated the Voting Rights Act rationale as a contrived pretext,” Thomas Wolf, counsel with the Democracy Program at the Brennan Center for Justice at the New York University School of Law, told The Post. “What they’re trying to do now is the textbook definition of a pretext — telling the court, ‘We plan to do this but we don’t know why yet.’”
As Tribe points out, “Among the many things wrong with the government’s disgraceful game is that [the] president has today made absolutely clear that his sole purpose in trying to circumvent the Supreme Court’s recent decision by inserting a citizenship question in the census one way or another is to reduce the political power of areas with a relatively high proportion of noncitizen residents (read: nonwhites) — perfectly lawful residents, despite Trump’s reference to them as ‘illegals.’” This, of course, amounts to “flatly violating the 14th Amendment’s mandate in Section 2 that such power be allocated among the states in proportion to their actual population.”
The entire debacle raises serious questions about the credibility and honesty of the Justice Department. “The Trump administration lied to the courts about the real reason for the citizenship question. And they got caught by the Supreme Court,” Mimi Rocah, a former federal prosecutor, tells me. “Now Trump has directed DOJ lawyers to come up with some other lie. No DOJ lawyer should sacrifice her integrity with the courts for this or any administration.”
Trump’s contempt for the rule of law and blatant dishonesty would not continue without the help of underlings. And they must do some serious soul-searching. “There are some things no DOJ lawyer can do. One of those is make arguments in court that are untrue in order to benefit the political whims of a president,” Joyce White Vance, a former prosecutor, says. “If DOJ’s leadership, the [attorney general,] the deputy AG, the solicitor general and the head of the Civil Division [don’t want to be] complicit in violating the duty of candor DOJ lawyers owe to the court, then they should resign on principle and in protest.”
They won’t resign en masse, of course, because the professional and ethical expectations have been so diminished in this administration that the unimaginable is now standard operating procedure for both political appointees and career lawyers.
“Make no mistake: The government lawyers — appointees and civil servants alike — who are spending this weekend trying to cleanse the record of this fact and salvage this plan are employing their legal skills in the service of white power,” Bassin says. “That’s not just a violation of their oath of office, it’s an abdication of the basic morality on which we all as human beings are ultimately judged. They don’t have to do this. We all make choices.”
The long-term reputation of the Justice Department may be severely damaged by these types of episodes. “A self-respecting DOJ official, whether a political hire or a long-serving civil servant, would resign rather than make arguments that treat the federal judiciary with such disrespect simply to humor the president or his lackey in the office of attorney general,” Tribe observes. Because they have not chosen that course, the next president and attorney general will have their hands full rehabilitating the department and reestablishing professional norms.
As Trump continues to mow down one democratic norm after another and tries to defy Congress and the courts on a regular basis, one has to reevaluate the efficacy and urgency of impeachment. “To refrain from promptly beginning formal impeachment proceedings against a president who conducts his office in this chaotically lawless manner, on top of everything else he has done, would be an abdication of constitutional responsibility,” Tribe asserts.
At the very least, this new example of deceitful lawyering should be added to the list of topics for House Judiciary Committee hearings.