The Trump administration suffered another embarrassing setback Tuesday in its quest to put a citizenship question on the U.S. census.
And the latest failure looks like a symptom of its larger problem.
A federal judge in New York rejected the Justice Department’s attempt to swap out its lawyers in the case. The DOJ had said Sunday that it would be replacing its legal team, without saying why.
The problem was that it also didn’t explain why to the judge. U.S. District Judge Jesse M. Furman wrote in a filing that the law requires “satisfactory reasons” for changing counsel in the middle of proceedings, in part because changing up a legal team can prolong the process. “Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Furman said, calling the request “patently deficient.”
Furman said he would allow the Justice Department to try again. The dilemma the Justice Department now faces, as The Washington Post’s story Tuesday noted, is whether it actually can disclose its reasons:
Furman’s move could force the Justice Department to expose more of its messy, internal debates over the census case. Those attorneys who object to the handling of it might proceed without signing briefs, serving up a regular, public reminder of how fraught the case has become internally. The department might also choose to lay out more detailed reasons for wanting the attorneys off in a subsequent request.
As I wrote after the Justice Department first announced the lawyer swap, there were two likely explanations for the attempted lawyer change, which came after the Trump administration lost in the Supreme Court, admitted defeat in court and then reversed course.
The first was that the legal team felt it had lost its credibility and could no longer continue the case — in part because of the reversal and in part because the lawyers admitted they didn’t know what their client, President Trump, was doing. They have also failed to produce an alternate rationale for the question, after the Supreme Court rejected the first one as being “contrived.” (And that doesn’t exactly suggest the new rationale will be entirely genuine.)
The second, and potentially uglier, option was that the existing legal team had objections to how the case was being handled and decided it didn’t want to be a part of what lay ahead. As The Post’s report notes, the legal team that was to be replaced specializes in this subject; the team that would have replaced it is more of a “truly random assortment,” according to Justin Levitt, who worked on such issues in the Obama Justice Department. So it doesn’t make a whole lot of sense to bring in a new team.
Given all of that, it’s perhaps not surprising that the administration wasn’t disclosing its actual reasons for withdrawing the legal team. What legal team wants to admit that it has bungled a case or — worse — that the existing lawyers weren’t prepared to do what was asked of them?
And the lack of a rationale appears to mirror the administration’s larger problem: its inability to find an acceptable rationale that it can admit. It initially said the census citizenship question was meant to help enforce the Voting Rights Act (despite this law being something Republicans have worked to dismantle in recent years). The Supreme Court ruled that the evidence showed that was not the real reason.
But where do you go from there? Do you admit the real reason was something else and that the previous rationale was all made up? Do you just admit that this was for redistricting (as Trump seemed to unhelpfully admit last week) and/or was the naked political power grab that your opponents have claimed it was from the beginning? That might ultimately pass muster in the Supreme Court, but it’s a fraught argument — both there and politically.
It looks a whole lot like the administration can’t admit the real reason for its action — both when it comes to its lawyers and its broader attempt to put a citizenship question on the census.