A federal judge in New York on Tuesday rejected the Trump administration’s plan to switch legal teams in the census case, throwing another wrench into the government’s drive to overcome a Supreme Court ruling that blocked its plan to ask every U.S. household how many residents are citizens.
The Justice Department announced on Sunday it was pulling its full team from the census cases and swapping in a fresh crew drawn from other units. Attorney General William Barr said on Monday that some lawyers on the case felt uncomfortable continuing after telling courts the citizenship question would be dropped, only to be contradicted the following morning by a furious tweet by President Trump.
But plaintiffs including the state of New York and the American Civil Liberties Union objected to the attorney switch, saying the government failed to justify the swap under court rules requiring satisfactory reasons for changing lawyers and assurances that litigation wouldn’t be sidetracked.
“Measured against those standards, [the government’s] motion is patently deficient,” U.S. District Judge Jesse Furman said in a three-page order. It provided “no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel.”
“Despite the president attempting to fire his lawyers, this is not an episode of ‘The Apprentice,’ ” said New York state Attorney General Letitia James, who represents a coalition of largely Democratic-led states and local governments challenging the citizenship question. “Judge Furman denied his request and required the administration to comply with the rules regarding substitution of counsel.”
“The Justice Department owes the public and the courts an explanation for its unprecedented substitution of the entire legal team that has been working on this case,” said ACLU attorney Dale Ho, who represents immigrant-rights groups. “The Trump administration is acting like it has something to hide, and we won’t rest until we know the truth.”
In Washington, the U.S. Justice Department declined to comment.
In January, Judge Furman blocked the citizenship question after finding that Commerce Secretary Wilbur Ross’s official rationale for posing the query—to help protect minority voting rights—wasn’t credible. The ruling, which the Supreme Court upheld last month, was based on requirements that agencies act with candor and a reasoned basis in making policy.
Federal courts in California and Maryland subsequently reached similar conclusions. The latter court currently is conducting an inquiry into whether the citizenship question was intended to discriminate against Hispanics, an allegation the Justice Department denies.
Judge Furman observed that until losing at the Supreme Court, the Trump administration had pushed courts to expedite proceedings.
“This case has been litigated on the premise—based in no small part on Defendants’ own insistence—that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance,” he wrote. That was difficult to square with a wholesale switch in legal teams, he wrote, observing that the government’s next filing was due in three days.
Should the Justice Department follow through on Mr. Trump’s goal of asking the district court for another chance, “time would plainly be of the essence in any further litigation relating to that decision,” the judge said.
The judge’s order allowed only two lawyers who have changed jobs to leave the case. The remaining nine will remain counsel until each files an individual affidavit justifying their departure, the order said.
This wasn’t the first time government attorneys have withdrawn from the case, Judge Furman noted. “In August 2018, lawyers from the United States Attorney’s Office for the Southern District of New York—‘the office that normally represents the Government in this District’—withdrew as counsel,” he wrote.
The switching out of the DOJ lawyers was a highly unusual shakeup.
James Burnham, the politically appointed head of the federal programs branch, told Mr. Barr a change made sense. A new team whose members had never dealt with the citizenship question wouldn’t be forced to answer damaging questions about why they were suddenly backtracking on arguments they had made in court for months, current and former officials said.
The former litigation team consisted of members of the department’s federal programs branch, which specializes in defending the administration against lawsuits and policy challenges. For the new team, lawyers from the Office of Immigration Litigation were recruited.
OIL has defended the Trump administration’s immigration policies and handled other politically sensitive issues. One of its lawyers came under fire for suggesting in an argument that officials didn’t necessarily need to provide toothbrushes, soap or beds for migrant children detained at the border for the conditions to be considered safe or sanitary.
Also on the new team is the politically appointed leader of the department’s consumer protection branch, who worked in the White House counsel’s office until May.
Members of the former team believed their options to put the question on the census were extremely limited and were caught off guard by Mr. Trump’s tweet saying he wished to push forward. But Mr. Barr told the New York Times he had been in regular talks with Mr. Trump about the census since the Supreme Court ruled and was aware of his desire to find a way to get the question on the 2020 form.