New York Attorney General Barbara Underwood, who sued the Trump administration for the addition of a citizenship question to the census, is objecting to how the Justice Department has interpreted a Supreme Court order pausing the deposition of two top administration officials in the case.
According to a status report filed by Underwood Wednesday to the federal judge presiding over the lawsuit, the Justice Department is shielding from deposition other defense witnesses, including in census citizenship cases separate from the lawsuit brought in New York. Meanwhile, DOJ lawyers are moving forward with plans to depose the witnesses for the challengers in those cases, the report said.
“Defendants have taken the position that the administrative stay applies unilaterally to stay Plaintiffs’ discovery, but not Defendants’ discovery,” Underwood told U.S. District Judge Jesse Furman. It hinted that there were “several remaining disputes regarding the adequacy of Defendants’ document productions and privilege assertions” that the challengers may have to bring to the judge if they are not resolved. It also asserted New York’s position that the trial there should begin Nov. 5 as planned, despite the Supreme Court-ordered delay in the depositions of Commerce Secretary Wilbur Ross and top Justice Department official, John Gore.
The Trump administration has fought tooth-and-nail the moves to depose Ross and Gore, but its efforts to block the depositions have failed at both the district court and appeals court level.
Tuesday evening, Supreme Court Justice Ruth Bader Ginsburg, who shepherded the request that the deposition orders be halted, delayed the depositions through Thursday afternoon, giving a 4 p.m. ET deadline so the parties could file any briefings on the issue. Gore had been scheduled to be deposed Wednesday, while Ross’ deposition was set for Thursday. Ginsburg’s order referenced specifically Furman’s three orders greenlighting the depositions and okaying additional discovery in the case.
But the Trump administration, according to Underwood, has read Ginsburg’s order very broadly when it comes allowing its officials be deposed by the challengers and very narrowly when it comes to its plans to depose the challengers’ witness. The Justice Department is staying on track, Underwood said, with it plans this week to depose former Census Bureau director John Thompson, UCLA professor Matt Barreto and statistician Hermann Habermann, all witnesses for the challengers, as well as for depositions planned for individuals from the organizations also named as plaintiffs in the suit.
But the Justice Department has stonewalled the challengers on their plans to depose John Abowd, a top Census Bureau scientist, according to Underwood. Underwood also told Furman that the challengers in separate census citizenship questions cases brought in California and Maryland had been informed by the Trump administration that it would not be making available two Commerce Department officials whose depositions were planned this week, pointing to Ginsburg’s order.
Read the status report below: