Federal judge won't allow Justice Department to switch lawyers in census citizenship question case
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Updated: A federal judge in Manhattan says he won’t allow the Department of Justice to switch lawyers in a challenge to a census citizenship question absent “satisfactory reasons” for the decision.
U.S. District Judge Jesse Furman mostly denied the substitution request Tuesday, report the New York Times, the Wall Street Journal and the Washington Post. He did allow two lawyers to exit the team because they had already left the DOJ’s civil division.
Furman’s July 9 opinion said the lawyers had to provide affidavits explaining the reason for their departures. The government defendants “provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Furman wrote.
Furman cited local court rules on withdrawing attorneys that require courts to consider the reasons for the withdrawal and the impact on potential case disruptions.
On Wednesday, a Maryland federal judge in a second census case said he shares Furman’s concerns, but he is inclined to eventually allow the substitution if the government provides more assurances that the transition won’t disrupt the case, report the Washington Post and Law360. For now, U.S. District Judge George Hazel also blocked substitution.
The opinion by Hazel noted that, unlike in Furman’s district, his district doesn’t require withdrawing lawyers to provide satisfactory reasons for withdrawal. He warned, however, that “a change in counsel does not create a clean slate for a party to proceed as if prior representations made to the court were not in fact made.”
According to the Washington Post article on Furman’s decision, his request for reasons “could force the Justice Department to expose more of its messy, internal debates over the census case.” The DOJ announced the switch after President Donald Trump contradicted an in-court assertion by the government’s lawyers that the question would be dropped from the census.
The U.S. Supreme Court ruled in June that the Commerce Department had to provide a better explanation of its decision to add a citizenship question to the census.
Commerce Secretary Wilbur Ross had said he was adding the citizenship question in response to a request from the DOJ for better citizenship data to assist in its enforcement of the Voting Rights Act of 1965. But the Supreme Court questioned whether that reason was contrived.
Critics have said the real reason the question was added was to depress the count of immigrants and help Republicans when census data is used in redistricting.
DOJ lawyers have cited a June 30 deadline for printing census forms. The administration has suggested that the question could be printed in a supplemental form.
The American Civil Liberties Union had opposed the “mass withdrawal” of the legal team in the case before Furman. The group said there would be a “forthcoming motion for sanctions” that would raise questions about “discovery and candor that are uniquely within current counsels’ knowledge.”
Even if the lawyers are allowed to withdraw, the ACLU said, the court should retain continuing jurisdiction over the attorneys in connection with the upcoming sanctions request.
Furman’s July 9 opinion said the departing lawyers’ sworn affidavits should confirm that they will submit to continuing jurisdiction of the court regarding sanctions. Assurances should also be provided that litigation will not be delayed, Furman said.
Trump questioned Furman’s decision in a tweet noting that the judge was appointed by Obama.
So now the Obama appointed judge on the Census case (Are you a Citizen of the United States?) won’t let the Justice Department use the lawyers that it wants to use. Could this be a first?— Donald J. Trump (@realDonaldTrump) July 10, 2019
Updated July 11 at 8:30 a.m. to include information from District Judge George Hazel’s opinion.