In a scalding order that called the Justice Department’s motion to change lawyers “patently deficient,” a federal judge in Manhattan on Tuesday blocked the move by the Justice Department to withdraw several of its attorneys from the census citizenship question case in New York.
With the exception of two DOJ lawyers who are withdrawing from the case because they have left their position at the Justice Department altogether, U.S. District Judge Jesse Furman is not letting the other attorneys withdraw because the department failed to provide “satisfactory reasons” for their exit from the case.
“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Furman said. Furman said that the government’s vague claim in its withdrawal motion that it did not expect the withdrawal to cause disruption to the proceedings was “not good enough, particularly given the circumstances of this case.”
The Justice Department announced on Sunday it was replacing the lawyers who were defending the government in the case after it made an incredible reversal in how it was approaching its next steps, after the Supreme Court last month blocked the administration’s original effort to add a citizenship question.
On Tuesday the Department said publicly and in court that it would not seek to get the question re-added to the 2020 census. But after an angry President Trump tweet on Wednesday that said the administration was going to keep fighting, the government told courts in New York and Maryland that it was searching for a new way to get the question included on the survey. That announcement put it at odds with several representations it made previously that the census forms needed to be sent to the printers on June 30.
“As this Court observed many months ago, this case has been litigated on the premise — based ‘in no small part’ on Defendants’ own ‘insist[ence]’ — that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance,” Furman said in his order Tuesday. “If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time.”
The Department of Justice has not offered many details as to why it was shaking up its legal team, prompting speculation that the career attorneys were not comfortable with the direction the administration was going in trying to get the question re-added.
In comments to the press on Monday Attorney General Bill Barr said that he could “understand if they’re interested in not participating in this phase.” But he also said he did not know the details as to why they were exiting the case.
On Tuesday, Furman raked the Justice Department over the coals for its failures to meet the procedural requirements for replacing its attorneys. He spelled out the local rule that required the Department to offer an “affidavit or otherwise of satisfactory reasons for withdrawal” for the judge to consider while he also considers the impact the withdrawal will have on the timing of the case.
“Measured against those standards, Defendants’ motion is patently deficient,” Furman said. He said that, in order to withdraw, the departing attorneys will need to each file an affidavit “stating ‘satisfactory reasons’ for withdrawing at this stage of the litigation” and consenting to submit to the court’s jurisdiction for any sanctions proceedings. The challengers have already launched sanctions proceedings against two government witnesses and they hinted Monday that more motions may be coming. Furman said the affidavits will have to confirm that the withdrawing attorney will “be available in the event that the Court requires his or her attendance at any future hearings regarding such motions or orders.”
“In the event any new motion is filed, new counsel for Defendants shall also file an affidavit providing unequivocal assurances that the substitution of counsel will not delay further litigation of this case (or any future related case),” Furman said.
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