Second Judge Blocks DOJ’s Attempt To Shake Up Census Case Team — For Now

As the Supreme Court justices hear oral arguments over the 2020 census citizenship question, protesters have gathered outside the building in support of a fair and accurate census and demanding to not include the con... As the Supreme Court justices hear oral arguments over the 2020 census citizenship question, protesters have gathered outside the building in support of a fair and accurate census and demanding to not include the controversial question in the next census. Tuesday, April 23, 2019, Washington, D.C. (Photo by Aurora Samperio/NurPhoto via Getty Images) MORE LESS
July 10, 2019 5:58 p.m.

The Justice Department’s efforts to replace the legal team defending the census citizenship question hit another obstacle on Wednesday, this time in the Maryland case challenging the question.

U.S. District Judge George Hazel blocked the move by the DOJ to withdraw its original team of lawyers from the case. He said the department needed to provide more details about how it will prevent the shake-up from disrupting the case’s proceedings.

“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,” Hazel said.

He is requiring that the department guarantee that “one or more of the withdrawing attorneys are remaining available to the new DOJ team” and if not, then the department must provide a “detailed reasoning for why such an arrangement is untenable.”

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He also gave the DOJ a veiled warning about what it does next in the case, while referencing certain claims that the original trial team made in the litigation.

“Defendants must realize that a change in counsel does not create a clean slate for a party to proceed as if prior representations made to the Court were not in fact made,” the judge said. “A new DOJ team will need to be prepared to address these, and other, previous representations made by the withdrawing attorneys at the appropriate juncture.”

The Justice Department’s highly unusual move to replace its entire census case trial team — which came from a DOJ division that specializes in these kinds of lawsuits — with a set of lawyers from elsewhere in the department came after a particularly bizarre week in the year-long legal battle.

After the Supreme Court struck down the administration’s initial move to add the citizenship question, the DOJ said publicly and in court at the beginning of last week that it was backing down in the fight. The following day, President Trump launched a Twitter tirade against the idea of retreating and the department had to reverse its position by going forward with trying to re-add the question, despite previously claiming that the deadline for finalizing the census forms was June 30.

There has been some speculation that the shake-up of the lawyers was fueled by a discomfort by the career attorneys on the case about where it is now heading. The Justice Department has not elaborated on the reasons for their exit, though a judge in the New York census case said on Tuesday that each departing attorney would need to provide “satisfactory reasons” for their withdrawal.

Hazel said on Wednesday that he shared similar concerns that the New York judge, U.S. District Judge Jesse Furman, expressed. His court, however, is not governed by the same local rules as Furman that require “satisfactory reasons” for an attorney’s withdrawal. So the conditions he’s imposing on the attorneys in order for them to withdraw focus on assurances that they will be available to keep the case moving along smoothly.

His filing put the new attorneys on notice that they will need to be “aware of and prepared to address potential conflicts between recent developments in this case and positions repeatedly taken before this Court by the withdrawing attorneys.”

He pointed specifically to an argument the old DOJ team made regarding the challengers’ claims that the question is discriminatory — a claim Hazel is now reconsidering and has ordered discovery for. The department had argued that Commerce Secretary Wilbur Ross was the sole decision-maker to add the citizenship question and thus any allegedly discriminatory motive or statements from President Trump were not relevant to Ross’ decision.

Read Hazel’s order below:

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