Jurisprudence

Former DOJ Lawyer Says Census Drama Put Attorneys in “Completely Untenable” Position

The government is abruptly switching legal teams after reversing course on the citizenship question.

Supreme Court Chief Justice John Roberts on Jan. 20, 2017, in Washington.
Supreme Court Chief Justice John Roberts on Jan. 20, 2017 in Washington.
Joe Raedle/Getty Images

The latest bizarre twist in the Census citizenship question case came on Sunday when the Department of Justice announced that the entire team of lawyers defending the government’s position in ongoing litigation would be replaced. The highly unusual move was confirmed on Monday in a series of court filings. It is likely at the behest of career officials uncomfortable with the government’s position moving forward, according to former DOJ attorneys. The lawyers on the case told the courts last week that the administration would stop trying to add the citizenship question to the census, but were quickly forced to reverse that position after President Donald Trump tweeted that reports of the decision to back down were “fake.” The sudden change in lawyers suggests there is some internal recognition that the government’s latest census stance has become untenable.

Justice Department spokeswoman Kerri Kupec announced the change on Sunday, declaring that Attorney General William Barr “is confident that the new team will carry on in the same exemplary fashion [as the previous team] as the cases progress.”

The government has been tight-lipped about the reasons behind the switch. According to multiple former DOJ officials, however, the move would have only come if the attorneys who had been working on the case had profound reservations about the task ahead and asked to be removed.

“It’s an extremely unusual thing for an entire office to take itself off of a case in the middle of a case,” one former DOJ attorney, who worked under this administration, told Slate. “[These are] attorneys with the highest standards of integrity and highest standards of professionalism. I can only imagine they were in the very difficult position of being forced to contradict factual representations they had made previously.”

“That the entire office is being substituted out really indicates […] something strange,” the former attorney, who requested anonymity due to concerns about professional repercussions, added.

Another former DOJ official also speculated to the New York Times that the unusual move was likely because the original legal team was refusing to reverse course.

“There is no reason they would be taken off that case unless they saw what was coming down the road and said, ‘I won’t sign my name to that,’ ” Justin Levitt, a former senior official in the Justice Department under President Barack Obama, told the New York Times on Sunday.

The Times further confirmed that not only would career officials from the DOJ’s federal programs branch—the branch normally responsible for defending administration policies in court—be leaving the case, but a completely new branch would be taking over.

Indeed, it has become clear over the past week that the DOJ would need to argue positions that completely contradict those previously taken in court by the original team. Last month, the Supreme Court remanded the decision about the citizenship question back to the Commerce Department after Chief Justice John Roberts sided with the court’s more liberal wing to determine that the department had unlawfully “contrived” its reason for adding the question to the census. Since the justices essentially ruled the original explanation—that the question was added to aid enforcement of the Voting Rights Act—was a lie, any renewed effort to add the question would require DOJ attorneys to acknowledge their past position had been false and represent that a new one was the true motivation all along.

Faced with this challenge, both the DOJ and Commerce Department seemed to take Roberts’ ruling as their cue to drop the case last week, even representing in court that the 2020 census forms would be printed without the question and no further attempts to add it would go forward. DOJ lawyers reportedly spent the July Fourth holiday scrambling to find a new justification that would pass legal muster following Trump’s comments to the contrary.

The final substantive legal filing from the old legal team came on Friday, when that team argued in court that a renewed equal protection claim was now “moot” because of the Supreme Court’s decision, and thus that discovery should not go forward in a reopened equal protection claim in Maryland. That element of the case was revived late last month after the uncovering of previously secret evidence that the citizenship question had been concocted to offer “a disadvantage to the Democrats” and be “advantageous to Republicans and non-Hispanic Whites.” After that evidence was found, Maryland District Judge George Hazel reopened the discrimination claim, and on Friday he ordered renewed discovery on that question to begin immediately and run through Aug. 19.

Administration attorneys had repeatedly insisted in court that they had a firm deadline of July 1 to print the census forms. Now, the new lawyers will apparently have to concede that this deadline was not real. Solicitor General Noel Francisco, for example, had told the Supreme Court that a decision in the case had to be made by the end of June, rejecting claims by opponents of the citizenship question that the form could be finalized as late as Oct. 31 without additional congressional appropriations. As former Office of Legal Counsel attorney Marty Lederman has written, now that the deadline has come and gone, DOJ attorneys will have to go into court and essentially say, oops, just kidding, we can do this without further funds from Congress after all.

“Being in a position now to deny those statements is something that would have been really untenable,” the former DOJ attorney told Slate. “From the point of view of the court hearing the case, they’re going to hear some set of attorneys making some argument that ‘you should ignore everything we’ve been saying for the last year plus,’ and that’s going to be a difficult sell for whoever’s making it.”

The administration apparently thinks it will be easier for a new set of lawyers to argue the new position than the specific attorneys who had previously argued the opposite. “An administration official said the new legal team may find it easier to argue the administration’s new position,” the Associated Press reported on Monday.

Indeed, the former DOJ attorney said, being “in the position of contradicting factual positions they themselves have made to the court for those particular attorneys would just be a completely untenable position for them to be in.”