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Judge Stops Government Lawyers Quitting Census Question Case

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The Justice Department can't replace nine lawyers so late in the dispute over whether to add a citizenship question to the 2020 census without explaining why it's doing so, a judge says.

Show transcript

Speaker 1: 00:00 The battle to include a citizenship question on the 2020 census goes on after a supreme court defeat. The Justice Department is trying to compose a stronger legal argument for the addition of the question. Meanwhile, attempts by the Trump administration to switch out attorneys still battling the issue in federal court was not approved by the judge. This is a legal battle. The president is waging on a number of different fronts including the possibility of issuing an executive order, forcing the citizenship question on the upcoming census. Joining me to explain where all these moving pieces fit in is my gas legal analyst, Dan Eaton and Dan, welcome back. Thank you. Good to be with you, Maureen. Now, can you explain briefly what the Supreme Court's ruling said and why? This is still an open question in the first place.

Speaker 2: 00:47 Sure. Maureen, let's be very clear the you, a majority of the United States Supreme Court, the conservative majority said there is nothing wrong of with the Department of Commerce including a citizenship question on the decennial census that is allowed. But once the court also said in the opinion written by Chief Justice Roberts and the part of the holding joined by the four so-called liberal justices of the Supreme Court, is that the explanation that the secretary of Commerce gave that is that the citizenship question was a necessary to help with voting rights act enforcement didn't match the administrative record. So what the court ultimately did, the majority of the court did was they sent it back to the Department of Commerce to come back with a better explanation of why it is including the citizenship question on the census questionnaire.

Speaker 1: 01:37 However, the Trump administration attorneys told the High Court that they had to have a decision by July 1st for the census forms to be printed. And in fact, the forms are being printed. So how do they explain the move to keep arguing this issue?

Speaker 2: 01:51 Well, the short answer of course, Maureen is the word tweet. Let's be clear about how we got to this point. The Department of Justice lawyers have represented that the questionnaire was being printed without the citizenship question that was followed by a statement by the secretary of Commerce. Uh, that said, uh, he was in an abandoning, including this citizenship question on this census questionnaire. But then the following day, the president of the United States issued a tweet saying that's all fake news. We are still looking to include this citizenship question and that's why we are where we are. The a judge, Judge Hazel in Maryland said, wait a minute, this is getting increasingly frustrating. I've got to know are you going to proceed or not with this citizen? Your question and if you are, we're going to continue to litigate this to decide what the basis of that question was.

Speaker 1: 02:42 Right now there are two census question cases moving forward. One in New York and one in Maryland. How are those different from what the Supreme Court heard?

Speaker 2: 02:51 Well, no, I mean those are the cases that the a this room court heard the, the supreme court heard the New York case and the are essentially the same. The Maryland case interesting now raises an eagle protection issue with respect to whether the question may uh, affect in an equal protection violation way Hispanics. But a separate, and apart from that, the fact is that the essential issue is the same. The fact is that in Maryland ice scheduling order has been set that would have all of the evidence, uh, all of the discovery done for additional evidence, uh, be disclosed in the next couple of months and a hearing, uh, in early September to decide this. Now, the federal case out of Maryland, as I understand it, is also hearing evidence. The supreme court didn't involving the discovery of a hard drive by a Republican strategist outlining the partisan motivation behind the citizenship question.

Speaker 2: 03:45 Will that be hard to overcome? It's not entirely clear because we don't exactly know what the evidence is beyond what has been reported, which suggests that there was a partisan motive. But the bottom line is that there's going to be a variety of evidence that is going to come forward. That it's either going to confirm the idea that what the secretary did was a pretext for gaining a partisan advantage or whether there are in fact, uh, reasons that we are not aware of so far that justifies the inclusion of this citizenship. Question. What we heard yesterday is that, uh, the judge in a federal case did not allow the Justice Department to switch out attorneys arguing the case as the attorney general wanted to do. Why and why would the Justice Department want to do that at this late date? This was of course in the New York case, look as a matter of ethics and a matter of rules of court, uh, attorneys who are seeking to withdraw from a pending case before a court cannot simply say peace out.

Speaker 2: 04:42 They have to come up with a satisfactory reason for it and they have to be able to assure the court that it's not going to disrupt the overall scheduling of the court. There was some reasons, for example, an attorney can withdraw or for example, that the client is seeking to assert a, a fraudulent, uh, representation before the court. It's also allowable though with the client gives him knowing a and free a consent to withdrawal. But if they do that, the court still has to weigh in and say it is allowed. And the judge, uh, Ferman up in New York said there are no satisfactory reasons that had been given. The fine line though that attorney who is seeking to withdrawal has to, has to walk is that they cannot disclose client confidences about why they want to withdraw from representation. So any kind of confidential, uh, communications they had with a attorney general barr cannot be disclosed as a basis for why these attorneys want to leave the case.

Speaker 2: 05:41 Ultimately, I suspect that these attorneys are going to come up with a satisfactory reason or for the withdrawal. The irony of course is that that is exactly the issue in the underlying set of census citizenship question. A lawsuit that is, does the secretary of commerce have a satisfactory reason for including the citizenship question in the census questionnaire and then the president says another option may be to issue an executive order or presidential memorandum including the citizenship question on the census. Can he do that even after the supreme court has ruled no more? We've, I, it's not entirely clear because understand that the supreme court decision or remanded the case ultimately back to the Department of Commerce to come up with something better in the form of an explanation. The fact is that the constitution article one of the constitution gives a responsibility and power for conducting the census to Congress, not to the president.

Speaker 2: 06:36 So a pure executive order divorce from that congressional delegation of power to the secretary of commerce would not appear to be warranted. But I don't think that's how the president guided by his attorney general will ultimately proceed. So we don't know. The answer is we don't know. There's a lot we don't know. The fact is that this case is moving very, very quickly and very rapidly in very unexpected ways. Uh, but we are going to know things in the next week or so that will make the picture clear. At least we will know of the terms under which this matter ultimately be resolved and we're running out of time. Ultimately this is going to have to result in a court decision in the lower court and then finally, potentially by the Supreme Court, all understanding that this all has to be taken care of no later than 2020 because that's what we're talking about here. A descent deal sensitive has to be conducted sometime in 2020 so this is going to put a lot of pressure on the parties and on the court to get this thing done very expeditiously. I haven't speaking with attorney Danny now, partner with the San Diego legal firm of Seltzer Caplan McMahon. Invitech Dan, thank you so much. Thank you, Maureen.

Speaker 3: 07:48 [inaudible].

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Maureen Cavanaugh and Jade Hindmon host KPBS Midday Edition, a daily radio news magazine keeping San Diego in the know on everything from politics to the arts.