Patterico's Pontifications

7/8/2019

Follow Up on the Census Case: DOJ Lawyers Replaced (UPDATED by Patterico)

Filed under: Government,Law,Politics — DRJ @ 6:11 am



[Headline from DRJ:]

DOJ replaces legal team handling cases related to census:

The Justice Department has decided to shake things up for the 2020 census — appointing a new team of Civil Division lawyers to handle all census-related cases, including President Trump’s push to have a citizenship question added to next year’s survey.

Agency officials confirmed the move in a statement Sunday.

“As will be reflected in filings tomorrow in the census-related cases, the Department of Justice is shifting these matters to a new team of Civil Division lawyers going forward,” said DOJ spokesperson Kerri Kupec. “Since these cases began, the lawyers representing the United States in these cases have given countless hours to defending the Commerce Department and have consistently demonstrated the highest professionalism, integrity, and skill inside and outside the courtroom.”

The new team includes political appointees.

My thought — and it’s just a guess — is that the old team wouldn’t sign the pleadings, fearing sanctions if the government continues to change its position.

— DRJ

UPDATE FROM PATTERICO:

Here is the WaPo take:

The Justice Department is swapping out the lawyers who had been representing the administration in its legal battle to put a question about citizenship on the 2020 Census, possibly signaling career attorneys’ legal or ethical concerns over the maneuvering ordered by President Trump.

The department announced the move in a statement, which was issued after The Washington Post inquired about whether the career lawyers on the team planned to withdraw. A person familiar with the matter, who spoke on the condition of anonymity to discuss internal deliberations, said that at least some of the career attorneys harbored concerns about the administration’s handling of the case — although the nature of those concerns and how widespread they were could not immediately be learned.

This is not surprising. I’m not sure how lawyers can deal with representing the interests of an administration that does not keep them informed but changes its mind on a whim in a presidential tweet:

When Trump tweeted Wednesday that the case was “absolutely moving forward,” some lawyers on it were blindsided.

Appearing that day before a federal judge in Maryland, Justice Department attorney Joshua Gardner explained how he had always “endeavored to be as candid as possible with the Court” but that he did not know what was on Trump’s mind.

“The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor,” Gardner said to the judge, a transcript shows. “I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”

I could not continue to represent a client who acted like that.

UPDATE x2 FROM PATTERICO: Judge Hazel will be familiar to longtime followers of the Kimberlin saga as the long-suffering judge tasked with dealing with all of Kimberlin’s nonsense.

UPDATE 3 by DRJ: AG Barr sees a way for census to legally ask about citizenship

Attorney General William Barr said Monday that he sees a legal path to adding a citizenship question to the 2020 census, despite a Supreme Court ruling that blocked its inclusion, at least temporarily.

In an interview with The Associated Press, Barr said the Trump administration will take action in the coming days that he believes will allow the government to ask the controversial question. Barr would not detail the administration’s plans, though a senior official said President Donald Trump is expected to issue a presidential memorandum to the Commerce Department instructing it to include the question.

UPDATE 4 by DRJ– The new York Judge (not Judge Hazel) refused to allow a change in the DOJ lawyers:

A federal judge in New York on Tuesday blocked the Department of Justice (DOJ) from changing its entire legal team handling a case on the census citizenship question in federal court in the state.

U.S. District Judge Jesse Furman found that DOJ’s motion did not address a procedural rule requiring them to provide a reason for the attorneys’ withdrawal from the case.

Plaintiffs in the New York case had filed a motion late Monday opposing the withdrawal of the DOJ lawyers.

UPDATE 5 by DRJ — Judge Hazel in Maryland has joined NY Judge Furman in rejecting “a Department of Justice request to replace its legal team.”

45 Responses to “Follow Up on the Census Case: DOJ Lawyers Replaced (UPDATED by Patterico)”

  1. I read elsewhere (Ken White I think) that a new legal team would have more credibility in proposing new and different theories.

    Also, if any of the legal professionals have the time to explain how the referenced sanctions work and how likely that would be I’d be very interested in learning more.

    Time123 (53ef45)

  2. I read elsewhere (Ken White I think) that a new legal team would have more credibility in proposing new and different theories.

    That makes sense.

    DRJ (15874d)

  3. Maybe they found someone with voting legislation experience, rather than a brawler from the AIG days.

    Narciso (23765c)

  4. Sanctions in federal court are governed by FRCP Rule 11, which includes:

    (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

    (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

    (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

    (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

    (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

    DRJ (15874d)

  5. There was a hearing after Trump’s tweet where everyone was confused. The Judge said the DOJ lawyers had always acted professionally but the Judge also lamented he not done more to pin down the government’s position — given Trump’s subsequent tweet — and that ongoing government representations would be made before court reporters. My reading is that Judge Hazel will hold the government and its attorneys responsible for what is said in court. DOJ lawyers may be concerned that the government’s positions will continue to be inconsistent and thus “being presented for any improper purpose.”

    DRJ (15874d)

  6. So why can the American community survey go our every years with the citizen question and it’s more invasive?

    Narciso (23765c)

  7. Thanks DRJ, so if I’m reading this correctly, it would be sections (b)(3) and (b)(4) that might cause trouble. How often does this come up? My assumption, likely wrong, is that you’d really have to mess these up to get sanctioned.

    Time123 (53ef45)

  8. DRJ I missed your comment in #5 before i wrote number 7. That answers my question, thank you.

    Time123 (53ef45)

  9. It would have been better if the Supremes decided that Trump’s question in the questionnaire violated the Enumerated Powers Clause (link). He and his lawyers would’ve had no place to go after that.

    Paul Montagu (fc91e5)

  10. UPDATE FROM PATTERICO:

    Here is the WaPo take:

    The Justice Department is swapping out the lawyers who had been representing the administration in its legal battle to put a question about citizenship on the 2020 Census, possibly signaling career attorneys’ legal or ethical concerns over the maneuvering ordered by President Trump.

    The department announced the move in a statement, which was issued after The Washington Post inquired about whether the career lawyers on the team planned to withdraw. A person familiar with the matter, who spoke on the condition of anonymity to discuss internal deliberations, said that at least some of the career attorneys harbored concerns about the administration’s handling of the case — although the nature of those concerns and how widespread they were could not immediately be learned.

    This is not surprising. I’m not sure how lawyers can deal with representing the interests of an administration that does not keep them informed but changes its mind on a whim in a presidential tweet:

    When Trump tweeted Wednesday that the case was “absolutely moving forward,” some lawyers on it were blindsided.

    Appearing that day before a federal judge in Maryland, Justice Department attorney Joshua Gardner explained how he had always “endeavored to be as candid as possible with the Court” but that he did not know what was on Trump’s mind.

    “The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor,” Gardner said to the judge, a transcript shows. “I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”

    I could not continue to represent a client who acted like that.

    Patterico (115b1f)

  11. UPDATE x2 FROM PATTERICO: Judge Hazel will be familiar to longtime followers of the Kimberlin saga as the long-suffering judge tasked with dealing with all of Kimberlin’s nonsense.

    Patterico (115b1f)

  12. What should not be controversial: asking respondents if they are citizens of the country they reside in, continues to be controversial and gated by “Simon Says” tactics.

    Wil the question be included in the 2020 census? Breath Status = [X] Not Held

    Colonel Haiku (2601c0)

  13. The Law, in all its majesty, is often an ass.

    Colonel Haiku (2601c0)

  14. I was not a trial lawyer so keep that in mind. In general, I think Rule 11 sanctions are rarely imposed and my impression is that courts are more willing to impose them in clearly frivolous cases. Using them here would sanction the government lawyers for not “controlling” the President, which strikes me as unfair, but then again courts can’t function if the DOJ can’t be relied on to accurately represent the government’s position in court cases.

    DRJ (15874d)

  15. Like Voldemort you arent to speak of it coronello, after conrad black Arthur Andersen Steven’s McDonnell I find judicial sanctions amusing

    Narciso (23765c)

  16. I would like to see this question on the Census, and I think the SCOTUS decision did not rule it out as a posibility. Instead, the case was remanded to continue discovery for a very limited time period (the trial court was given 45 days for discovery and ruling) on the involvement of a GOP strategist and the Commerce Secretary’s motives for including the question. I suspect there can be “improper” motives/involvement as long as there is a reasonable basis for the question, and I think there are good reasons for a citizenship question. But governing this way suggests leaders who are governing by fiat, not reason, and that is not good if you believe in the Rule of Law.

    DRJ (15874d)

  17. Remember what they did the last time, try to fold the bureau into the white house, play this sampling game

    Narciso (23765c)

  18. I would like to see this question on the Census, and I think the SCOTUS decision did not rule it out as a posibility. Instead, the case was remanded to continue discovery for a very limited time period (the trial court was given 45 days for discovery and ruling) on the involvement of a GOP strategist and the Commerce Secretary’s motives for including the question. I suspect there can be “improper” motives/involvement as long as there is a reasonable basis for the question, and I think there are good reasons for a citizenship question. But governing this way suggests leaders who are governing by fiat, not reason, and that is not good if you believe in the Rule of Law.

    I’m with you on this. I would also add that the census should be administered to get the most accurate count of persons we can get.

    That’s important not just because it’s what the constitution calls for but because of the impact on federal appropriations.

    Time123 (797615)

  19. The decision to switch to a new team strikes me as one vastly more likely to have been made upstream — possibly by Trump himself, possibly by Barr or another very high level DoJ position — rather than the result of cold feet or other concerns on the part of the previous team.

    It is the fundamental nature of the profession that lawyers are but counselors and advocates — agents — rather than principals. Every lawyer who’s been in practice for very long, including non-trial lawyers, has had clients who refused to follow advice, or much worse, who suddenly and dramatically changed their minds and reversed course mid-representation.

    Had the lawyers on the original team known that the ultimate decision-maker (Trump, as head of the Executive Branch) did not intend to drop efforts to include the citizenship question on the 2020 census, and had they therefore been making a knowing and deliberate decision to mislead the relevant judges when they so indicated, then yes, those individual lawyers might have been subject to Rule 11 sanctions or, perhaps even more devastatingly, removal from the rolls of lawyers admitted to practice before those particular courts. An ex-Assistant U.S. Attorney or other DoJ lawyer who’s been barred from future practice before the federal courts where he or she lives & works is not a very attractive candidate in the private sector job market, and any such disciplinary action or sanction would follow that lawyer for the rest of his or her career (since other jurisdictions that might admit him or her to practice require fulsome self-disclosure of past sanctions and disciplinary actions).

    But that’s not at all what appears to have happened here. To the contrary, these lawyers were caught as off-guard by their client as their opponents and the judge were caught by Trump’s sudden reversal. So I think they were at minimal risk of sanctions or other disciplinary action; to the contrary, their prompt and frank admission of surprise probably saved their personal reputations with the judges involved in these various cases.

    Despite their lack of personal or professional culpability, though, their client‘s chief decision-maker, Trump, has now demonstrated beyond any doubt that these lawyers don’t have his cooperation, nor the confidence and respect required for any functional attorney-client relationship. I’m relatively sure they must have welcomed being replaced, and it’s certainly in the interests of the ultimate client — that is, the United States of America, as distinct from the clown currently calling the shots for that client from the Oval Office as its chief executive — for a new team to replace them. The outgoing lawyers will now be the nunc-pro-tunc son-of-a-b!tches who can be blamed by their successors (wrongly or rightly) for everything that’s gone wrong in the past, and presumably the new team at least starts with a presumption that it does indeed speak for the client and its top decision-maker, at least for the moment.

    Until Tucker Carlson or some other ridiculous Trump whisperer persuades him that he needs to fire this team, too.

    The bottom line is that this will damage the credibility of Trump and, to a considerable degree, his entire DoJ, more than it will the credibility of these particular lawyers.

    Trump is always, ever, his own worst enemy. This time he’s trod upon his tiny sword very forcefully.

    Beldar (fa637a)

  20. have no problem with a citizenship questions, but I do want an accurate count. Seems like competent people could find a way to achieve both or failing that to show that any impact to an accurate count has been minimized and is an appropriate trade off. But not this team.

    It also seems like if this were a priority a good leader would stress that to their subordinates and make sure that they were kept informed of there were going to be any changes to their desired outcome. Honestly this seems like another example of how he’s just a terrible, terrible, leader.

    Time123 (53ef45)

  21. Beldar, thank you for the perspective. Interesting comment to read.

    Time123 (53ef45)

  22. The DOJ lawyers clearly did not know about Trump’s decision and the transcript indicates Judge Hazel believed them, but I think it also showed that “Trump surprised us all” is not going to work in the future. It makes sense that new DOJ attorneys can start a clean slate but they have the same SCOTUS decision, facts, and court to deal with.

    DRJ (15874d)

  23. The thing is, I don’t know what Judge Hazel can or will do. My feeling is that he may be more willing to allow the plaintiffs to have more depositions than the 4-5 scheduled or to otherwise expand discovery without expanding the time, although this tweet used up 7 of the 45 days. It also strikes me that he may limit the government’s discovery so it may be easier for the plaintiffs to show the Commerce Dept had corrupt intent.

    DRJ (15874d)

  24. Those new attorneys will have a fun time opposing the plaintiffs’ motion for relief under Rule 58(e) based on judicial estoppel.

    The DOJ can change its lawyers, but it can’t change what it repeatedly represented as fact to the court.

    Geek, Esq. (f1416a)

  25. Rule 59(e) rather.

    Geek, Esq. (f1416a)

  26. That Roberts thinks the Judiciary has the right to determine what question gets put on the Census is insane. I wonder what the Federal Judges will have to do, before someone reins in their out-of-control lust for power. Part of me wishes Trump would just put the question in, and tell the judges to go jump in the lake. But he has more important fish to fry.

    rcocean (1a839e)

  27. That Roberts thinks the Judiciary has the right to determine what question gets put on the Census is insane. I wonder what the Federal Judges will have to do, before someone reins in their out-of-control lust for power. Part of me wishes Trump would just put the question in, and tell the judges to go jump in the lake. But he has more important fish to fry.

    Literally none of that is based on reality. If you want an easily justified reason for impeachment, go ahead and let tRump just ignore the limitations to his power.

    The supreme court decision isn’t a mystery, you too can read it. You won’t because facts then may intrude on the “narrative”.
    https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf

    Colonel Klink (Ret) (6e7a1c)

  28. That Roberts thinks the Judiciary has the right to determine what question gets put on the Census is insane.

    The Administrative Procedure Act, passed by Congress and signed into law almost 75 years ago, explicitly gives the courts this power to review actions taken by administrative (aka “deep”) state.

    Do you think bureaucrats and their decisions should be unchallengeable by the people they affect? Only when you agree with them, I’m guessing…

    Dave (1bb933)

  29. Also, the power to oversee the Census belongs to Congress, not the President, which means the courts’ role in Census questions has the same basis as the President’s—express Congressional authorization/delegation.

    Geek, Esq. (d2d441)

  30. That Roberts thinks the Judiciary has the right to determine what question gets put on the Census is insane.

    The Roberts Court rightly interpreted the Administrative Procedure Act, which required a reasoned explanation for the question, not the lie that Wilbur Ross tried to pass off (in Roberts’ more diplomatic language, a “contrived” rationale). Article 1, Section 2 of the Constitution states that enumeration is to be done “in such Manner as [Congress] shall by Law direct.” The judiciary has the right, under law, to strike a question that is unlawful, but not to determine what question gets put on the form.

    Paul Montagu (fc91e5)

  31. I added Update 3: “Barr sees a way for census to legally ask about citizenship.” Barr to Trump’s rescue again?

    DRJ (15874d)

  32. I added Update 4. The New York Judge refused to allow the DOJ to bring in new attorneys because it would delay the case, although “… he did allow for two attorneys to be pulled from the case, as they had already left the Justice Department or DOJ’s civil division.”

    DRJ (15874d)

  33. I can almost picture it…

    Hapless judge: You want to do what?

    Dave (55e817)

  34. Exactly. The government wanted this case to be expedited until it lost, and now it wants delay.

    DRJ (15874d)

  35. The irony is the government didn’t have to lose but every step has been a misstep.

    DRJ (15874d)

  36. A link to the Order.

    DRJ (15874d)

  37. Ah sanctions such a quaint notion, except they dont apply the DEA or at least this circumstance

    https://www.google.com/amp/s/www.law360.com/amp/articles/1176283

    Narciso (23765c)

  38. Trump’s lawyers, including the DOJ lawyers, have been horrible from day one. Have they won anything harder than a defamation suit brought by a p*rn actress represented by a thief?

    nk (dbc370)

  39. DOJ’s motion did not address a procedural rule requiring them to provide a reason for the attorneys’ withdrawal from the case

    Now the question is, I suppose, do they want to tell the truth, whatever it exactly is, AND will the truth suffice?

    (It could be they jumped the gun, if it came from above, or it could be the lawyers didn’t feel they wanted to deal with this any more, if it came from below, or it could be very simply that some lawyer gave different advice so they went with him, and the person or persons who devised the new strategy and the new arguments should be the one to make it to the court.)

    Sammy Finkelman (e0f80a)

  40. 36. The judge is allowing two lawyers to withdraw. Are they the chief counsel? So the judge simply objects to removing every one of the previous 11 lawyers?

    Sammy Finkelman (e0f80a)

  41. I found the DOJ’s motion for leave to withdraw, and I can see why the judge denied it.

    In support of their motion for leave to withdraw, undersigned counsel respectfully state as follows:

    Please know that we still maintain a high level of respect for the profession of law and the administration of justice, and we thank the Court sincerely for the support and assistance you have offered us in each of those roles. We have been proud to work for the American legal system over the past two years; it has been a journey that has provided us an unparalleled foundation to move forward to new and exciting opportunities.

    As such, we have decided to become professional pirates. It has always been a dream of ours to live the life of swashbuckling corsairs, beholden to none and master of all we survey. Once our crew of unabashed rogues is assembled, we shall take to the capacious expanse of the high seas to pursue fortune, fame, and hair-raising adventure.

    Our path may not be filled with the porcine comforts and technological marvels that a federal courthouse provides, but we shall nonetheless move forward to carve a name for ourselves in the annals of bold insurgency and death-defying derring-do. With a keen blade at our hip and the Jolly Roger flapping high above us, we believe we will find our true calling.

    Please note that we are currently accepting applications for boatswain, if you are at all interested in applying. We will provide a full medical and dental plan, which will offer immediate coverage of all maladies other than scurvy and the occasional bout of rickets.

    Respectfully submitted,

    Attorneys for Defendant

    Source: http://www.octopusoverlords.com/forum/viewtopic.php?t=58182

    nk (dbc370)

  42. I can see why the judge denied it.

    They didn’t even say “Arrrr!”

    What a bunch of amateurs.

    Dave (1bb933)

  43. I think Allahpundit has a good analysis of what is happening with the DOJ lawyers and the consequence of White House lies:

    If they objected to continuing on with the case due to ethical reasons, it makes sense that they wouldn’t want to state that in their motion to withdraw and risk embarrassing Trump and the department. But the federal judge who issued today’s order has called their bluff. Either they have to get back to work or they have to openly admit their ethical misgivings about what they’re being asked to do, which will be an unholy PR clusterfark for the White House and the DOJ. What are they going to do?

    To give you a sense of just how messy this has gotten, read this story about the many times federal officials have contradicted their own stated reasoning for wanting to add the citizenship question to the census. Remember, it’s supposed to be about the Voting Rights Act, but figures like Ken Cuccinelli have admitted at times that the information might be used in immigration enforcement. And Trump himself admitted just a few days ago that it might be used for redistricting, perhaps to try to exclude illegals from the count in apportioning House districts. My takeaway from John Roberts’s opinion in the SCOTUS ruling was that he was straining for ways to give Trump the green light to do this but, as a matter of basic judicial integrity, couldn’t allow the administration to lie baldfaced to the Court about what its motives were. Now you have the president all but confessing that the Voting Rights Act rationale wasn’t the real reason for asking about citizenship on the census. If this case comes back to SCOTUS, Roberts may feel obliged to rule against Trump purely because it would embarrass the Court at this point to reward the administration with a win after lying so brazenly.

    Trump supporters may not care whether he lies but courts care.

    DRJ (15874d)

  44. The court doesn’t care about citizens, that’s what convoluted decision meant, ‘we must dissolve the people, and elect another’ you may get your wish.

    Narciso (31d00b)

  45. I added Update 5. Judge Hazel also refused the DOJ request to replace its attorneys.

    DRJ (15874d)


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