Eating Its Words: DOJ Now Willing To Blow Right Past Bogus Census Deadline

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July 9, 2019 6:00 a.m.
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President Trump’s insistence that a citizenship question be added to the census is putting his Justice Department at odds with itself after it told federal courts at least 15 times that the census forms needed to be finalized by the end of June.

The ACLU, in a filing last week, pointed to numerous examples of that claim as the organization asked a federal judge in Manhattan to hold the administration to its word and block it from making any more changes to the census, now that the June 30 deadline has passed. TPM found a handful more instances of DOJ lawyers making this claim in its own review of the Justice Department’s recent assertions in the Maryland census case.

On several occasions, the administration said the forms “must” be finalized by June 30.

Perhaps the most damning example is a statement from the Solicitor General Noel Francisco in a June 20 letter to the Supreme Court rebutting suggestions, prompted by a Census Bureau official’s testimony, that the the deadline could be pushed back to October.

Francisco said any change to the forms after June 30 would be “infeasible,” absent additional appropriations from Congress,

Days earlier, a DOJ attorney made a similar claim in a Maryland federal courtroom, where he told the judge that “under the current budget” any changes to the census after June 30 would, according to the Census Bureau, “impair” its ability to administer the survey.

In just the last month alone, the administration claimed at least seven times that the forms needed to be sent to the printers by the end of June. Indeed on July 2, the government told the legal challengers — and later a federal judge — that the forms had been submitted without the citizenship question.

A day later, Trump said his administration was going to continue to fight to get the question added. It is not clear yet how the administration intends to do so or how it will square such efforts with its previous assertions that the forms couldn’t be changed after June 30.

Here are the examples identified by the ACLU of the administration’s stated need to stick to the June 30 deadline to print the census, as well as additional instances found by TPM:

Claim of actual October deadline is “wrong and contradicted by the record.”

From a June 17 district court filing in the Maryland case, signed by Assistant Attorney General Jody Hunt, Deputy Assistant Attorney General James Burham and several career lawyers from the DOJ:

June 30 is the Census Bureau’s “drop-dead deadline.”

As DOJ attorney Josh Gardner told Maryland District Judge George Hazel at a June 18 hearing:

He also said changes after “would impair” administration of the census:

All parties had “full awareness of the need to finalize the census questionnaire by June 30.”

From a June 24 appellate court filing, signed by Hunt, Deputy assistant attorney general Hashim Mooppan, and two lawyers from the civil division:

With Attorney General Bill Barr’s vague claim on Monday that he believed the government had found a “pathway” to getting the question back on the census, it appears at least some officials at the Department of Justice won’t let themselves be shamed by their previous representations. (The Department notably on Sunday night announced that it was shaking up the legal team working on the case, prompting speculation that some of the career lawyers weren’t willing to sign on to the approach the Department was about to take).

Barr suggested Monday that the Department “might as well take a shot” at fixing the “problem” that led to the Supreme Court blocking its previous efforts to add the question.

However if the judge grants the request the ACLU made Friday, the administration might not even get that far. The ACLU is asking for the judge to permanently block “altering the 2020 decennial census questionnaire or otherwise delaying the process of printing the 2020 decennial census questionnaire after June 30, 2019, for the purpose of including a citizenship question.”

The Justice Department will have to respond by Friday, according to the judge’s order, and there will be oral arguments on the issue later this month.

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