Judge Takes Misconduct Claims In Census Case Seriously But Won’t Rush It

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NEW YORK—A judge on Wednesday said that while accusations of misconduct against the Justice Department and government witnesses in the census citizenship case were not “frivolous,” as the government had claimed, there was also “no apparent urgency” to resolve the matter.

The question of whether there will be a citizenship question on the 2020 census is currently before the Supreme Court, and a decision is expected soon. But U.S. District Judge Jesse Furman told a packed courtroom in New York City Wednesday that there is “no urgency to resolve” whether or not a government lawyer and a Trump transition staffer should be sanctioned based on newly raised questions about their honesty during the lawsuit, because that issue is “collateral” to the census question.

The judge was “acutely aware” of the task before the Supreme Court, he said, and did not want to “interfere” or “cross the line” into what the high court is considering.

“It may even be helpful to wait,” Furman said, noting at one point that he only wanted to hear about “process, rather than substance” of airing out the new allegations.

He set a July 12 deadline for the challengers, led by the ACLU and other civil rights and liberties groups, who joined several states and localities, to make a formal filing to pursue sanctions.

Furman’s decision not to rush things lowers the chances that the new claims from the ACLU reach the Supreme Court. Furman’s briefing schedule pushes the latest proceedings deep into the summer, by which time the Supreme Court is expected to have already ruled on the underlying issue of whether the citizenship question can stay on the 2020 census. The parties have been operating under a presumed deadline of July 1 for submitting the new census forms to the printer.

Outside the courtroom, TPM asked lawyers for the challengers if they had hoped to get new evidence before the Supreme Court, which now seems less likely.

“We want to get the truth out,” replied John Freedman of the New York Immigration Coalition. “The Supreme Court, we think, no matter what it decides, is going to be interested in what the truth is.”

Dale Ho, of the ACLU’s Voting Rights Project, added later: “What was important to us is that the judge took the allegations seriously.”

At issue are claims that two witnesses provided false testimony that effectively obscured key evidence in the case. The challengers made the claims after obtaining files from a now deceased GOP gerrymandering consultant that suggested he was involved in the Trump’s administration push to add a citizenship question to the census.

Among the files was an unpublished 2015 study by the consultant, Thomas Hofeller, that said a census citizenship question would be necessary for a redistricting overhaul that would boost the GOP. The new evidence is the most concrete yet that the administration had political motives for adding the question, contradicting the official reasons given by the Justice Department.

The lack of disclosure about Hofellor’s role was worthy of a court’s sanction, lawyers opposing the citizenship question alleged when they filed the new documents in court recently. They alleged that John Gore, a Justice Department official who wrote the formal request for the question, should be sanctioned for failing to disclose that he’d received a draft justification for the question from an outside advisor — a draft that included a paragraph written by Hofeller.

Gore admitted in a congressional interview well after the trial judge decided the case that he’d received a draft letter from the outside advisor Mark Neuman. Neuman is also being accused of false testimony regarding Hofeller’s role, which appears to include ghostwriting the draft memo Neuman gave Gore.

The Justice Department has denied the allegations and has argued that the challengers failed to ask the right questions during depositions. The Department pointed out that it had provided the Neuman draft in discovery and had told the challengers that the draft came from materials collected from Gore. The Department called the calls for sanctions conspiratorial and “inflammatory.”

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