We previously suggested that the federal court judge in New York hearing the census case — in which the Trump administration was told to come up with a better pretext for including the citizenship question than the false one it gave the Supreme Court — find out why the Justice Department, after reversing itself on both the deadline for the printing and its acquiescence to leaving out the citizenship question, was swapping out one set of lawyers for another. If, and I’m just taking a wild guess here, the first set of lawyers believed they were ethically prohibited from making the arguments or submitting the facts their superiors told them to, then the court should know about it. We all should.
Well, U.S. District Judge Jesse Furman came through, refusing to release the first group of lawyers without an explanation for their departure. In other words, come back with a pretext, er, reason for getting out of a case in which the Supreme Court found the proffered reason to be a pretext (i.e., false). It’s a mirrored fun house of lies.
Former prosecutor Joyce White Vance tells me, "The Judge had plenty of reason for issuing this order; as he noted, DOJ's filing was deficient because it failed to offer a 'satisfactory reason' for the withdrawal, which the rule requires in this situation." Vance adds, "This is the sort of failure to comply with the rules that a judge would be annoyed by, at least from the government, in a normal situation, but this motion is far from normal."
The Washington Post reports:
" 'Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel," Furman wrote. He also noted that a filing in the case was due from the department in just three days, and that the department had previously pushed for the matter to be moved along quickly. . .
"He said the department could refile its request, if it gave 'satisfactory reasons' for the attorneys' withdrawal and promises that the attorneys who had worked the case previously would be available upon request. The judge also asked the department to 'file an affidavit providing unequivocal assurances that the substitution of counsel will not delay further litigation of this case (or any future related case).'"
Constitutional scholar Laurence Tribe observes, "Watching a federal court refuse to play this administration's lawless little game is among life's most reassuring signs that the center might hold after all." He concedes, "There are obvious limits to the ability of an Article III court to work its will in the world: as Alexander Hamilton famously observed in Federalist 78, the judiciary lacks both the power of the sword and the power of the purse and thus possesses neither force nor will but merely judgment, backed by the power of public reason." That said, "within its realm, the judiciary remains supreme: not infallible, obviously, but final." He adds that this "seems to me a wise reminder that the Constitution and Laws of the United States remain the Supreme Law of the Land. If the president and his lackey, the uniquely unprincipled Attorney General, want to defy the U.S. Supreme Court, the lower federal courts aren't going to make it easy for them to do it behind a phony charade of musical chairs."
Now, the Justice Department and its lawyers have an interesting quandary. The original batch of lawyers have to file an affidavit — a statement under penalty of perjury — if they still want to be excused. If they give the real answer (let’s suppose it is “I don’t want to lie” or “I have some standards”), the Justice Department’s case might be blown to smithereens, and the court will be in a position to conclude that the government has been acting in bad faith. No citizenship question.
If the first team of lawyers isn’t willing to come up with a pretext — which would be nearly impossible for all of them to have the same excuse — they have to continue to litigate, but may refuse to present the arguments or facts that the attorney general wants them to make.
Meanwhile, Attorney General William Barr has hinted that the president could get around all this by issuing an executive order. Umm, I don't think that's going to go down very well with either the district court that smelled a rat in the Justice Department's request to swap lawyers, or with the Supreme Court, which told the president to come up with a better, "real" reason for the citizenship question that actually matched the factual record.
And here's the kicker: While this ethical black hole sucks in Barr's department, the judge in a similar case in Maryland is allowing discovery to proceed. Plaintiffs think they've found the smoking gun in newly discovered files of a deceased Republican consultant revealing that the actual intent of the question was to diminish the count of nonwhites, thereby aiding the Republican Party. As House Speaker Nancy Pelosi (D-Calif.) put it, this was the "Make America White Again" effort writ large.
There are three takeaways here.
First, Barr's Justice Department is torching its reputation with the courts, a gross mistake that might have consequences in a wide array of other cases. If the administration lies once, the thinking goes, maybe it does so on a regular basis.
Second, the reason for the citizenship question must be so objectionable and so indefensible that the Justice Department is tying itself in knots, to the point where its own lawyers cannot abide by the legal trickery. It must either drop the effort or face evidence of intentional discrimination, a reason the Supreme Court would never accept as legitimate.
And third, individual acts of conscience matter. Refusing to participate in an ethically defective case was the right thing for the first group of lawyers to do. It might later be looked upon as a rare bright light in a Justice Department darkened by the Trump presidency. By speaking up, these lawyers just might ensure an accurate census count and thwart a move that can rightly be seen as an effort to enhance white power. If they stick to their guns, they’ll certainly have followed their oaths to seek justice and uphold the Constitution.
Jennifer Rubin writes reported opinion for The Washington Post.