Government

Did Federal Programs Lawyers At DOJ Just Nope Out Of Further Embarrassment Over The Census?

Attorney General switches out the legal team... maybe career DOJ lawyers finally reached their humiliation limit?

By  
on

(Photo by Alex Wong/Getty Images)

On Sunday, Attorney General William Barr swapped out the legal team defending the Trump administration’s attempt to include a citizenship question on the 2020 Census. No explanation for the line-change was given, but to me, it sure looks like the Federal Programs lawyers at the Department of Justice have finally had enough of being humiliated in court in defense of Donald Trump’s lawless desires.

I don’t think Barr just woke up on Sunday and decided it was time for “fresh blood” on the Census. I think he woke up on Sunday confronted with the reality that the current team was done lying for him and his boss. To understand that contention, you have to understand what the lawyers were being asked to do. It’s not just that Chief Justice John Roberts ordered the Commerce Department to come up with a legitimate reason to add the citizenship question, a reason the administration doesn’t have so the lawyers were going to have to defend a different lie in open court. The lawyers probably would have done that, no problem.

The issue is that the lawyers were going to have to go back in front of a judge and admit they’d been lying to the court all along about the “expedited”/”emergency”/”THIS IS NOT A DRILL” timing over finalizing the Census questions.

Remember, the government’s case was expedited by the district court and fast-tracked for Supreme Court review. This was done because, according to the Department of Justice’s lawyers, the questions on the upcoming Census had to be finalized by June 30th. According to Solicitor General Noel Francisco, that was a non-negotiable deadline.

On Balkinization, Marty Lederman has the play-by-play of the DOJ’s timeline arguments:

[The ACLU motion opposing Justice’s attempt to move forward with the Citizenship Question after the Supreme Court ruling] cites chapter and verse–many chapters and many verses–of the ways in which DOJ has insisted to Judge Furman and to the Supreme Court (among others) that June 30 was a hard-and-fast deadline. The motion also explains that the courts and the parties relied upon those representations. DOJ’s assertion of a June deadline was the reason that Judge Furman himself, for instance, expedited discovery, trial, and briefing schedules. “[T]ime is of the essence,” he wrote, “because the Census Bureau needs to finalize the 2020 questionnaire by June of this year.” See also id. at page 191. The Solicitor General also invoked the June 30 deadline as the basis for his extraordinary request for the Supreme Court to grant certiorari “before judgment” (i.e., to take the case before the court of appeals could consider it). “[T]he Census Bureau must finalize the census forms by the end of June 2019 to print them on time for the 2020 decennial census,” the SG explained to the Court. Accord id. at 13–14 (“the government must finalize the decennial census questionnaire for printing by the end of June 2019”), id. at 16 (referring to “the June 2019 deadline for finalizing the census form”). Again in his motion for an expedited briefing and oral argument schedule, the SG told the Court that “the questions presented must be resolved before the end of June 2019, so that the decennial census questionnaires can be printed on time for the 2020 census” (emphasis added). The June 30 deadline was also an essential part of the grounds on which the government successfully urged the Supreme Court to add the Enumeration Clause question to the case well after cert. had been granted.

Sponsored

To argue that the citizenship question can still be added now — after the Commerce Department comes up with another (fake) reason, we have discovery and litigation into that reason, and we have a ruling and perhaps an appeal of that ruling — is to argue that the Justice Department was lying about the timeline before, and yet still needs the case to move forward quickly now.

That was a bridge too far for Federal Programs lawyers. The lawyers in the Federal Programs division are career DOJ lawyers. They defend the government’s policies, regardless of who is in control of the government. I believe their apolitical approach has led them astray during the Trump administration. A lawyer who defends a terrorist is a noble tool of the legal system and its commitment to due process. A lawyer who defends the state-sponsored terrorism promulgated by the Trump administration is merely a blunt object in the service of a corrupt regime, even if they don’t think of themselves like that. There will be an accounting, in this life or the next, of people who helped Trump or opposed Trump, and I think lawyers at Main Justice are on the wrong side.

However, and we’ve seen this time and again with “institutionalists” during the Trump era, these people are willing to sacrifice the country, but not their precious “reputations.” Here, Federal Programs lawyers, many of whom would like to have a job after Trump, would have had to go into court and be humiliated. They’d have had to lie, while admitting they were lying before, and they were informed that they’d have to do all this lying via tweet. There’s a great bit in Robert Graves’s I, Claudius, where Claudius prosecutes the Praetorians who killed Caligula. The assassins argue that Caligula was a bad man, and a danger to all of Roman society, which is true. But Claudius points out that Caligula had been a danger to all of Rome for most of his reign, and it was personal insults Caligula doled out to his bodyguards that turned them against him, not some greater love of Rome.

I think that’s what happened to the Census lawyers. They balked, not out of some deep love of country or deep concern about the rule of law. They bailed because Trump was about to embarrass them. Bill Barr couldn’t keep them in line anymore. So, to do Trump’s bidding, Barr is going to have to go to more political lawyers who want future federal judiciary appointments and are thus willing to say anything Trump wants them to say.

It’s just a theory. Normally, you need an explanation for switching out an entire trial team when the clock is ticking on filing motions and appeals. Of course, chaos is so common in the Trump White House, it could also be that Trump randomly decided that it was the lawyers’ “fault” for “losing” in front of the Supreme Court and stomped around saying “you’re fired” a lot as if that was a solution to his problems. My suggestion that anybody associated with Trump has anything approaching principles any more, or even normal self-preservation instincts, is probably wrong.

Sponsored

Justice Dept. to Replace Lawyers in Census Citizenship Question Case [New York Times]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Topics

, , , ,