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Federal judge rejects Trump administration’s bid to swap out lawyers for census case on citizenship question

Over the past four months, the Trump administration has changed its story on adding a citizenship question to the 2020 Census multiple times. (Video: The Washington Post)

A federal judge in New York on Tuesday denied a bid from the Justice Department to replace the team of lawyers on the case about the census citizenship question, writing that its request to do so was “patently deficient.”

The department had earlier this week announced its intention to swap out the legal team on the case, without saying exactly why.

A person familiar with the matter said the decision was driven in part by frustration among some of the career lawyers who had been assigned to the case about how it was being handled, though the department wanted to replace those in both career and political positions.

But U.S. District Judge Jesse M. Furman denied the formal, legal bid to do so.

Three judges have found that Commerce Secretary Wilbur Ross gave a phony reason for adding a citizenship question to the 2020 Census. (Video: Meg Kelly, Joy Sharon Yi/The Washington Post)

“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Furman wrote. He also noted that a filing in the case was due from the department in just three days, and that the department had previously pushed for the matter to be moved along quickly.

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

President Trump said on Twitter: “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?”

Furman said the department could refile its request, if it gave “satisfactory reasons” for the attorneys’ withdrawal and promises that the attorneys who had worked the case previously would be available upon request. The judge also 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).”

Furman did allow two attorneys who had previously left the Justice Department or its Civil Division to be removed.

The judge’s decision was the latest development in the continuing effort by the Trump administration to add a citizenship question to the 2020 Census.

In a ruling late last month, the Supreme Court blocked the Trump administration’s plan to add the question, saying the government had provided a “contrived” reason for wanting the citizenship information.

The Justice and Commerce departments then effectively conceded defeat — but Trump soon ordered the lawyers to do an about-face and come up with ways to keep the fight alive.

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.

The Justice Department declined to comment on the judge’s decision.

New York Attorney General Letitia James took a tacit swipe at Trump in reacting to the ruling.

“Despite the president attempting to fire his lawyers, this is not an episode of ‘The Apprentice.’ Judge Furman denied his request and required the administration to comply with the rules regarding substitution of counsel, ” said James, in a reference to Trump’s onetime television show.

Justin Levitt, an election law professor at Loyola Law School who was a deputy assistant attorney general in the Department of Justice’s Civil Rights Division from 2015 to 2017, said he had never seen the department swap out an entire team in the middle of litigating a case.

The move was particularly odd given that the previous team was composed of experts in administrative procedure who were steeped in the details of the census litigation, he said. The new team, pulled together from the department’s consumer protection, civil fraud, and office of immigration litigation components, is “a truly random assortment,” he said.

“It’s a hodgepodge of people whose roles have absolutely nothing do to with the conduct of the census or with proper administrative procedure. That should give everybody pause about what’s coming next.”

Intensifying the political battle, House Democrats threatened to block funding for government efforts to ask about citizenship status as the White House continued to ponder an executive order to force the issue. 

“I have no intention of allowing this flagrant waste of money,” Rep. José E. Serrano (D-N.Y.), who leads the House panel overseeing funding for the Commerce and Justice departments, said in a statement. “I once again urge the Trump administration to give up this fight and allow for a depoliticized and accurate census, as we always have.”

A spokesman for the House Appropriations Committee confirmed Democrats would seek to block taxpayer money from funding any efforts by the Trump administration to ask about citizenship in next year’s survey “if the issue has not been rendered moot by the courts.”

Critics of the question say it could cause an undercount of millions of people in immigrant communities who would be afraid to return the form, leading to an inaccurate number that could skew representation and apportionment in favor of Republican areas.

Data from the constitutionally mandated enumeration of all people living in the United States is used by businesses and by the government to allocate hundreds of billions of dollars in federal spending per year.

It is also used to determine congressional apportionment and redistricting.

But several Republicans on Tuesday pushed back in defense of the administration’s efforts to ask about citizenship on the census form, which has not included a question on that matter since 1950.

“The census in the past . . . has been increasingly responsive to changes in American demography,” White House counselor Kellyanne Conway said Tuesday on Fox News. “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?”

The White House had backup from allies on Capitol Hill, who took to the airwaves and on Twitter to also make their case. 

“Of all the questions we ask, this should be one of the most basic,” Sen. Kevin Cramer (R-N.D.), a close administration ally, tweeted Tuesday afternoon. “All hands ought to be on deck to get this done.” 

Trump said late last week that he was exploring an executive order to continue efforts to add a question about citizenship to the Census.

One option administration officials have floated for adding the question after forms are printed is to print a supplement that contains the question. But while digital forms can be altered up until the last minute, inserting an additional question into the packet to be mailed to people's homes would create logistic and scientific problems, experts say. 

“The idea of printing an addendum seems to be fraught with confusion and I think it would be a big mistake,” said John Thompson, who was Census Bureau director until 2017. “It would go against all kinds of questionnaire design methods — but that doesn’t seem to have bothered them yet.” 

The placement of a question on the form can significantly affect response rates, and is normally thoroughly tested in the field before a new question is added. Ross proposed adding the citizenship question after testing of forms without the question was already underway; the bureau is currently testing a version that includes the question. 

When it was anticipating a win in the Supreme Court, the government held fast against the possibility of pushing past the July 1 deadline. In a filing last month, Solicitor General Noel Francisco told the high court that an assertion by one of the plaintiffs that the forms could be finalized as late as Oct. 31 “is unsupported by the record.” 

Other brewing fights are sure to keep the Census issue front and center in the coming weeks. 

The Democratic-led House is set to vote before leaving for their August recess to hold both Attorney General William P. Barr and Commerce Secretary Wilbur Ross in contempt of Congress for not complying with subpoenas related to the administration’s decision to include the citizenship question. The White House has asserted executive privilege over the information.