DOJ Catches More Heat For Mass Lawyer Exodus In Census Cases

Michelle R. Smith/AP

Another wrench has been thrown in the Justice Department’s efforts to replace its legal team defending the census citizenship question.

The groups who challenged the question in a Maryland federal court are seeking to block that shake-up in the case there, where the judge has ordered discovery on the claim that the question was added with a discriminatory intent.

Already the Justice Department saw the withdrawal motion it filed for the lawyers in the New York census case blocked by that Manhattan judge, after the challengers in that case objected to the move.

U.S. District Judge Jesse Furman, of the southern district of New York, scolded the Justice Department on Tuesday for its failure to offer “satisfactory reasons for the lawyers’ withdrawal, as required by local rules.

The Maryland plaintiffs made similar arguments as the New York challengers, while emphasizing that the case is proceeding with a quick discovery timeline on the discriminatory intent claim.

“A wholesale change of Defendants’ legal team at this late stage of the litigation creates an acute risk that discovery on Plaintiffs’ Equal Protection claim will be further delayed and bogged down while uninitiated counsel for Defendants try to understand the case,” the Maryland challengers wrote in their motion filed Tuesday evening. “As the Court has recognized, time continues to be of the essence, and any further delay could prejudice Plaintiffs.”

“At minimum,” the challengers are requesting a guarantee from the Justice Department that it won’t use the excuse of bringing in new lawyers to delay discovery production.

The challengers also want the court to “require current counsel to provide a full explanation to the Court why their withdrawal from the case is necessary and appropriate at this late juncture.”

It’s not typical for DOJ attorney withdrawal motions to receive such pushback in court. However, it is also not typical for the Department to replace wholesale its trial team of legal experts that have been litigating a case from the beginning, at such a late stage in the proceeding.

The Department has not fully explained the move, prompting speculation that the career attorneys on the census case were not comfortable with the direction the administration was heading with it.

The administration will try to get the question — blocked last month by the Supreme Court — re-added to the census after President Trump tweeted last week that the Department’s previous representations that it was backing down in the fight were “fake.” Doing so will require the Justice Department to backtrack on its repeated and insistent claims throughout the litigation that the census forms needed to be finalized by June 30.

Furman told the Justice Department that if it wants to withdraw the attorneys, each of them will have to file an affidavit explaining why they are leaving.

The Maryland challengers in their Tuesday filing took note that the new attorneys the Department has said will join the case are not from the division that typically defends agency actions from the census.

The new attorneys comes from the Department’s Office of Immigration Litigation and Civil Fraud Section, “neither of which is responsible for defending litigation of this type much less as a last-minute substitute,” the Maryland challengers said.

“Absent any persuasive showing of need or inability on the part of current counsel, this Court would be well within its discretion in denying Defendants’ last-minute attempt to bring in an entirely new team with no prior exposure to the details of this litigation and no demonstrated expertise in the relevant law,” they said.

Read the filing below:

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