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The Trump Administration’s Bid To Swap Lawyers In The Census Cases Is Not Going Well

Federal judges in California, Maryland, and New York rejected DOJ’s first attempt at switching lawyers, saying the government didn’t submit enough information about the late change.

Posted on July 10, 2019, at 6:32 p.m. ET

Mandel Ngan / AFP / Getty Images

President Donald Trump with Commerce Secretary Wilbur Ross.

WASHINGTON — A trio of federal judges rejected the Justice Department’s first attempt to switch out the team of lawyers handling litigation over the Trump administration’s effort to put a citizenship question on the 2020 Census.

The Justice Department on Monday asked judges for permission to withdraw the previous team of lawyers from census cases in California, Maryland, and New York, saying they would be replaced by new counsel. Over the next 48 hours, the three federal judges presiding over those cases concluded that the Justice Department’s filings failed to comply with court rules or, at a minimum, lacked information. The judges said the government could try again, this time with more specifics.

In the week since the Trump administration reversed course and renewed efforts to try to get the citizenship question on the census form, the Justice Department has been in the uncomfortable position of fielding demands for information from perplexed judges. The judges did not rule out allowing the previous DOJ lawyers to withdraw, but said the government had to do a better job explaining what was going on before they would allow it.

For now, the lawyers from the Federal Programs Branch who had been handling the litigation — some for more than a year — are stuck until the judges agree to let them withdraw. The new team of lawyers didn’t need permission to join the cases, so they can still be involved going forward.

The department didn’t offer a reason for the change in lawyering, but it came on the heels of a dramatic turn last week in the administration’s position on the citizenship question. In late June, the US Supreme Court ruled that the administration couldn’t include the question based on the current record. By July 2, it appeared the administration was largely dropping the fight — a Justice Department attorney notified lawyers for the groups that had sued that the administration would print the forms without the question, and Commerce Secretary Wilbur Ross confirmed the decision in a public statement.

But July 3, President Donald Trump tweeted that news reports based on those statements from DOJ and Ross were “FAKE!” The judge in Maryland, US District Judge George Hazel, convened a hearing later that day to find out what was going on. Just a day earlier, a Justice Department lawyer directly confirmed to the judge that the administration would go ahead without the question.

At the July 3 hearing in Maryland, Joseph “Jody” Hunt, head of the Civil Division, told the judge that they had been directed to evaluate options for getting the question on the form. In an unusual public admission of uncertainty, the DOJ lawyer who told Hazel the day before that there would be no citizenship question, Joshua Gardner, told the judge he was surprised by the change and didn’t know what had happened.

Justice Department spokesperson Kerri Kupec then announced Sunday evening that a new team of lawyers would be taking over, and the department formally filed the paperwork in each of the courts on Monday. All of the lawyers from the Federal Programs Branch — which traditionally handles litigation against federal agencies — would be leaving, and a group of lawyers representing a hodgepodge of other DOJ sections — immigration, consumer protection, and fraud — would be stepping in.

The first rejection came in New York. US District Judge Jesse Furman ruled Tuesday that the government failed to comply with local court rules that require withdrawing attorneys to give “satisfactory reasons” for doing so and to assure the court that the change wouldn’t disrupt the case. If DOJ wanted to try again, he wrote, they would have to file affidavits from each lawyer explaining their reason for leaving, and confirm that the previous team would continue to fall under the court’s jurisdiction for any future proceedings exploring how they’d handled the case.

“Defendants’ motion is patently deficient,” Furman wrote.

Early in the afternoon on Wednesday, US District Judge Richard Seeborg, who sits in San Francisco, held a roughly 20-minute phone call with the lawyers to get an update on the status of the case. John Libby, a lawyer with the law firm Manatt, Phelps & Phillips representing plaintiffs in the case, told BuzzFeed News that Seeborg said the Justice Department’s withdrawal notice didn’t comply with the court’s rules, and he told them they could try again.

Finally, later in the day Wednesday, US District Judge George Hazel, who sits in Greenbelt, Maryland, issued an opinion denying the Justice Department’s motion to withdraw the lawyers. Hazel wrote that Maryland didn’t have the same rules as New York requiring “satisfactory reasons” for withdrawing lawyers, but he needed more information about how the transition between legal teams would be handled to avoid delays or disruptions.

“This case involves complicated factual and legal disputes that Plaintiffs’ attorneys and the withdrawing attorneys have litigated over the last fifteen months,” Hazel wrote. “As a practical matter, the Court cannot fathom how it would be possible, at this juncture, for a wholesale change in Defendants’ representation not to have some impact on the orderly resolution of these proceedings unless Defendants provide assurance of an orderly transition between the withdrawing attorneys and new counsel.”

A Justice Department spokesperson declined to comment.

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