WASHINGTON — The legal fight over the Trump administration's effort to put a citizenship question on the 2020 Census took another surprising turn Monday, as the Justice Department revealed the new team of lawyers suddenly being subbed in.
The staffing change represents the latest twist since the administration revealed on July 3 that it was still looking for ways to include the citizenship question — notwithstanding statements just a day earlier by the Justice Department and Commerce Secretary Wilbur Ross that the administration was dropping the question.
The Justice Department filed notices on Monday in citizenship question cases in federal courts across the country that lawyers from the Federal Programs Branch — the section that specializes in lawsuits against government agencies — would be stepping aside, and attorneys from the Consumer Protection Branch would be coming in. The change stretched up the chain of command — James Burnham, a political appointee and head of the Federal Programs Branch, was replaced as well.
The new legal team did not give a reason for the switch. In a separate motion asking the judge to let the previous legal team withdraw, the new lawyers wrote that they did "not expect that withdrawal of current counsel will cause any disruption in this matter."
According to the court filings, David Morrell, head of the Consumer Protection Branch, will oversee the litigation going forward. Morrell, a political appointee, served in the White House counsel's office until he moved over to the Justice Department in May, according to his LinkedIn profile.
The notices filed in cases in Maryland, New York, and California were signed by Glenn Girdharry, a career attorney who has worked at the Justice Department since the summer of 2010, according to his LinkedIn profile. He currently serves as assistant director of the Office of Immigration Litigation, according to Monday's filing.
The new team also includes Colin Kisor, who as of a court filing in an unrelated case on Monday was the deputy director of the Office of Immigration Litigation; Christopher Reimer, who as of a May court filing was an attorney in the Civil Fraud Section; Daniel Schiffer, who according to LinkedIn is a trial attorney in the Civil Fraud Section; and Christopher Bates, who joined the Civil Division as senior counsel to the head of the division in April, according to his LinkedIn profile, and was serving in that role as of a June court filing.
DOJ spokesperson Kerri Kupec announced the change on Sunday night; she did not give a reason at the time.
"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," Kupec said. "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's unusual to see a dramatic change in the government's legal team this far along in litigation, and even more so to see lawyers brought in from a section that doesn't typically handle these types of cases.
The Federal Programs Branch managed the census-related litigation against the Commerce Department, which includes the Census Bureau, from the start; the lawsuits in Maryland and New York were filed in April 2018. Other Justice Department lawyers were added to the team over time — the most recent lead counsel for the government, Joshua Gardner, joined late in 2018 — but original members stayed on.
Speaking with reporters on Monday during a visit to South Carolina to tour a federal prison, Attorney General Bill Barr said to expect more information soon on the administration's plans.
"I think over the next day or two you'll see the approach we're taking and I think it does provide a pathway for getting the question on the census," Barr said, according to the Charleston Post and Courier.
Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, one of the groups that sued in Maryland, told BuzzFeed News in a phone call Monday that he didn't know why the government had made the switch, but that it didn't matter to the legal arguments going forward.
"It doesn't make a difference who the lawyers are if the law is against you, and we believe strongly that the law is against them," Saenz said.
The American Civil Liberties Union, which is involved in census litigation in New York, filed papers late Monday contesting the withdrawal of the DOJ lawyers who had been working on the case until now. The ACLU argued the government failed to comply with local court rules that require a party to give "satisfactory reasons" for withdrawing counsel, and expressed concern that it could affect upcoming legal proceedings over whether the government gave accurate information to courts in the past about the census.
"It's one thing for a single lawyer to be moved off a case for staffing reasons or something like that," Dale Ho, director of the ACLU's Voting Rights Project, told BuzzFeed news. "That's not unusual. It is unusual particularly to see the government replace an entire legal team. When there are questions about the truthfulness of some of the representations that the government has made, it frankly looks fishy."
Former Justice Department officials and other lawyers watching the litigation expressed confusion about the change.
Neal Katyal, who served as the former acting US solicitor general in the Obama administration, tweeted, "Never heard of anything like this."
Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, tweeted, "??Come again?"
Vanita Gupta, who led the Civil Rights Division during the Obama administration and now heads the Leadership Conference on Civil and Human Rights, simply tweeted a puzzled face emoji.
The legal fight over the administration's plan to put a citizenship question on the 2020 Census seemed largely over by the evening of July 2. A week earlier, the Supreme Court ruled that the administration couldn't include the question based on the current record, finding that Ross's official reason for adding it — to support voting rights efforts by the Justice Department — was "contrived" and didn't match the evidence.
Mid-afternoon on July 2, a Justice Department lawyer emailed lawyers who challenged the question to say that "a decision has been made" not to include the question on the form. Ross issued a public statement soon after confirming that the questionnaires were being printed without the question, although he also underscored that he disagreed with the Supreme Court's decision. In an off-the-record phone call later in the day, a Justice Department lawyer confirmed to a federal judge in Maryland that the question would not be on the form.
But at midday on July 3, Trump blew it all up. He tweeted that reports that the administration was dropping the question — reports based on official statements from his own executive branch — were "FAKE!" The judge in Maryland, US District Judge George Hazel, convened a hearing hours after seeing Trump's tweet to find out what was going on. Senior Justice Department official Joseph "Jody" Hunt told the judge that the department had been "instructed" to look for ways to include the citizenship question "consistent with" the Supreme Court's decision.
The reversal appeared to come as a surprise to Gardner, who just a day earlier had told Hazel that the question wouldn't be on the form.
"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 said, according to a transcript. "But, obviously, as you can imagine, I am doing my absolute best to figure out what's going on."
Gardner repeatedly referred to the situation as "fluid." However, he said that the Census Bureau was still going ahead with plans to print the form without the question on it, citing the multiple lower court injunctions still in place barring the question from being included.
Hazel ordered the government to file an update on July 5 either confirming they were dropping the citizenship question fight, or proposing a schedule for next steps if they were not.
On the morning of July 5, before the government filed its response to Hazel's order, Trump said he had spoken with Barr and that the administration had "a number of different avenues," including using his authority to issue an executive order or ask the question through an "addendum" to the questionnaire, according to a White House pool report. He didn't specify what exactly he could put in any executive action, however.
Trump also listed reasons why the administration wanted to add the citizenship question, and they didn't match the reason the Justice Department had repeatedly put forward in court. Trump said: "Number one, you need it for Congress ... for districting." In court, the administration had said DOJ asked for the question to help with voting rights enforcement, disputing claims by the challengers that it was actually a bid to suppress responses by immigrants and Hispanics in order to redraw electoral maps to favor Republicans.
When the Justice Department did file the court-ordered update later in the day, it didn't provide clarity. The lawyers repeated what Hunt and Gardner told Hazel at the previous hearing — that DOJ and the Commerce Department "have been asked to reevaluate all available options." If Ross adopted a "new rationale" for adding the question, the government could "immediately" alert the court, they wrote. The department didn't give a timeline for that decision or specify what options they were considering.
After the government filed its response, Hazel issued an order giving the challengers permission to press ahead in the meantime with claims that the citizenship question proposal was rooted in unconstitutionally and unlawfully discriminatory motives. The judge originally ruled that the record didn't include enough evidence to support discrimination claims; he blocked the question on other legal grounds. However, he reopened those claims in light of new documents discovered on the hard drive on a dead Republican strategist, Thomas Hofeller, that the challengers said bolstered their arguments.
The Justice Department asked Hazel to delay proceedings on the civil rights claims until the administration decided whether to try again with a "new rationale" for adding the question. Hazel rejected that request.
"Regardless of the justification Defendants may now find for a 'new' decision, discovery related to the origins of the question will remain relevant," the judge wrote.
Further complicating the administration's renewed effort to find a way to include the citizenship question are arguments raised by the ACLU in the census case in New York. There, lawyers filed court papers on July 5 arguing that given the government's repeated representations to lower courts and the Supreme Court that the census questionnaire had to be finalized by June 30, the administration should be blocked now from trying to add it. The ACLU noted that courts had agreed to speed up proceedings based on that June deadline.
"Defendants’ perpetuation of uncertainty over the status of the questionnaire is unacceptable: by their own admission, this delay is imperiling the Defendants’ ability to conduct the 2020 census," the ACLU and its lawyers argued.
US District Judge Jesse Furman ordered the government to respond by July 12, and set a hearing for arguments on July 23.
The Justice Department official overseeing the census litigation is David Morrell. A previous version of this story misspelled his name.
Updated with information about a new ACLU filing.
Updated with comment from Thomas Saenz and additional information about the new Justice Department lawyers.