The Justice Department announced Sunday night that it is assigning a new team of attorneys to defend President Donald Trump’s continuing attempts to add a question about citizenship to the 2020 census.
A statement announcing the move gave no clear rationale for the shift, but legal experts said the lawyers who’ve handled the multi-front legal battle for the Trump administration over the last 15 months were likely to face questions about their credibility in the prolonged fight, since they repeatedly told federal courts that there was an urgent deadline at the end of last month to finalize the language for the census questionnaire.
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Now, Trump has ordered officials to keep pursuing avenues to add the citizenship question, even if it means delaying the decennial population survey mandated by the U.S. Constitution.
“As will be reflected in filings tomorrow in the census-related cases, the Department of Justice is shifting these matters to a new team of Civil Division lawyers going forward,” Justice Department Kerri Kupec said. “Since these cases began, the lawyers representing the United States in these cases have given countless hours to defending the Commerce Department and have consistently demonstrated the highest professionalism, integrity, and skill inside and outside the courtroom. The Attorney General appreciates that service, thanks them for their work on these important matters, and is confident that the new team will carry on in the same exemplary fashion as the cases progress.”
It was not immediately clear whether the legal team handling the citizenship question cases asked to be removed from the cases or were directed to relinquish their role.
Some of the difficulties the team defending the administration’s previous decisions were likely to face as the litigation rolled on were evident during a conference call last week between the Justice Department, opponents of the question and a federal judge in Maryland handling a pair of cases challenging the decision to add the query, which critics believe will lead to an undercount of families who include current or recent immigrants.
A Justice Department lawyer who’d handled those cases, Joshua Gardner, found himself seeking to explain why he told the court that the administration was throwing in the towel following an adverse decision from the Supreme Court late last month, but Trump announced on Twitter that he planned to press on.
“I’ve been with the United States Department of Justice for 16 years, through multiple Administrations, and I’ve always endeavored to be as candid as possible with the court,” Gardner said. “The tweet this morning was the first I had heard of the president’s position on this issue, just like the plaintiffs and Your Honor. I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted.”
Gardner was joined on the call by a much more senior Justice official, Assistant Attorney General Jody Hunt, who seemed to be trying to shield the so-called line attorney from any fallout from Trump’s decision to keep up the legal combat Justice lawyers had said needed to be concluded by about a week ago.
Three different federal judges ruled that Commerce Secretary Wilbur Ross’s decision to include the citizenship question was illegal because Ross’s official explanation for the move — that it was needed to provide data for the Justice Department’s voting rights enforcement efforts — seemed to be inaccurate.
In the Supreme Court’s June 27 ruling, Chief Justice John Roberts joined the court’s liberals in concluding that Ross’ explanation seemed “contrived” and “a distraction.” The decision did not expressly foreclose a new or better-supported rationale for adding the question, but the urgency with which federal government lawyers presented the case in recent months led many observers to believe that the ruling essentially blocked the citizenship query for next year’s census.
Now, Trump says he’s mulling an executive order that could seek to re-add the citizenship query to the census. And Hunt told judges handling litigation over the issue that the administration may ask the Supreme Court to give further guidance on how certain legal challenges to any renewed effort to add the controversial question should proceed.