The Justice Department just announced that it will swap out the lawyers who are representing the administration in the legal battle over the effort to add a citizenship question to the 2020 Census. This battle continues because Trump ordered the administration to keep fighting to add the question, even though officials had surrendered after the Supreme Court ruled against it.
As The Post reports, the change in the legal team might signal “legal or ethical concerns” about Trump’s handling of the affair. One source said such concerns were harbored by some “career attorneys.”
It gets worse. A Justice Department lawyer tells the New York Times that due to the switch, no lawyers from the division that defends administration policies in court — the federal programs branch — will be working on the case.
The Times adds that the move strongly suggests that career lawyers “decided to quit a case that at the least seemed to lack a legal basis,” or worse, could force them to defend statements that “could well turn out to be untrue.”
Tellingly, the Times reports that those career lawyers appear to have concluded that “there were difficulties in finding a new justification” for the citizenship question “that would not seem invented out of whole cloth.”
Translation: The lawyers knew they couldn’t come up with another fake rationale to replace the last fake rationale, without it being blindingly obvious that the new one is just as fake as the last one.
The last rationale offered by the Commerce Department — which oversees the census — was that the question will help enforce the Voting Rights Act. The Supreme Court ruled that this rationale was a “contrived” pretext — that is, fake.
The move would likely boost the GOP: By discouraging households with noncitizens from responding, the question could result in undercounts that dilute representation and the awarding of federal dollars in those areas.
The files of a deceased GOP operative who advised officials on adding the question revealed that he saw it as a way to confer electoral advantage on whites and Republicans. And the idea was pushed early on by Stephen K. Bannon and Kris Kobach, two of Trump’s most virulently anti-immigrant advisers.
Still, by kicking the case back to lower courts, the high court potentially left an opening for officials to develop another rationale. And here’s where the new switch in legal team becomes important.
Administration lawyers give away the game
Last week, administration lawyers told the courts that they would develop a “new rationale” for the question. As I suggested, this amounted to a stark admission that the next rationale will also inevitably be offered in bad faith.
It now appears administration lawyers may have themselves reached this conclusion. This is what the Times gets at by reporting that they fear any new rationale will “seem invented out of whole cloth.”
Adding to the farce, as JM Rieger documents, the administration has already offered multiple shifting rationales. Trump himself vaguely conceded that the question was needed to influence redistricting in ways involving — yup — representation and federal funding.
Regardless, if the administration’s own lawyers have concluded it won’t be possible to hatch a new rationale without it being self-evidently fake, we may soon hear it from them. As former deputy solicitor general Neal Katyal points out, the House Judiciary Committee can, and should, question them on this point.
The link to the anti-Obamacare lawsuit
The bad faith evident in the Census affair has echoes in the Justice Department’s treatment of the lawsuit brought by Republican-led states against the Affordable Care Act. The lawsuit’s argument has been denounced as profoundly absurd even by opponents of the law, but a Texas judge ruled against the ACA, and the appeal will be heard this week.
A final decision wiping away the law could unleash havoc. But Trump embraced the lawsuit, and Barr’s Justice Department is supporting him by refusing to defend the ACA in court and by filing a brief in support of the lawsuit.
This, too, may have alienated career Justice Department lawyers: The Times now reports that some of them had hoped Barr would act as a “buffer” against adopting legally indefensible positions, but his stance on the ACA has shattered such illusions.
Nicholas Bagley, a law professor at the University of Michigan and a former Justice Department lawyer, suggested the two cases are having a similar corrupting influence.
“In both, Barr directed his lawyers to make bad-faith arguments, just because Trump said so,” Bagley told me. “That’s a blow to the integrity of the Justice Department and a threat to the rule of law.”
Barr validates Trump’s “witch hunt” claim
Finally, there’s Barr’s enabling of Trump’s attacks on the rule of law. Barr has tried to lend credibility to Trump’s conspiracy theory that law enforcement tried to derail his candidacy, which suggests that his ongoing review of the genesis of the Russia investigation may be tailored to baselessly undermine perceptions of the probe’s legitimacy.
Barr has also suggested that Trump’s “witch hunt” language is reasonable, and has insisted we must appreciate how victimized Trump felt by the probe when evaluating his obstruction of it. Arguably, these things seem designed to legitimize Trump’s thoroughly corrupt attacks on Barr’s own Justice Department.
“This is not business as usual,” Bagley told me, in summing up all we’ve seen. Indeed it isn’t — and we still haven’t seen how much damage it could yet do.