Second judge rejects Justice Department request to change census lawyers

by Jacqueline Thomsen - 07/10/19 5:10 PM ET

A federal judge on Wednesday rejected the Department of Justice’s (DOJ) bid to swap attorneys working on a case involving the census citizenship question, the second judge to do so in as many days.

Judge George Hazel wrote that he agrees with the other judge’s “well-reasoned order” rejecting the Trump administration’s proposed change in legal teams, saying that “a shift in counsel at this late stage may be disruptive to an already complicated and expedited case.”{mosads}

Hazel, an Obama appointee, said he would ultimately be open to allowing the DOJ lawyers to leave the case and ruled in a way that allows the request to be made again. However, he added that “under the unique circumstances of this request, more specific assurances will first need to be provided.”

“As a practical matter, the court cannot fathom how it would be possible, at this juncture, for a wholesale change in defendants’ representation not to have some impact on the orderly resolution of these proceedings unless defendants provide assurance of an orderly transition between the withdrawing attorneys and new counsel,” the judge wrote.

DOJ spokeswoman Kelly Laco declined The Hill’s request for comment.

The DOJ on Sunday announced that it would be changing out the entire legal team handling the census citizenship question cases. That came after the Trump administration abruptly reversed its initial decision to no longer pursue the question’s addition to the census, following the Supreme Court’s ruling against the question’s inclusion on the survey.

The withdrawal of lawyers who had been handling the cases across several federal courts for more than a year fueled worries from outside spectators that the attorneys were not comfortable making different legal assertions than the ones they’d made previously — speculation Hazel appeared to touch on in his opinion Wednesday.

“Defendants must realize 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 mad,” the judge wrote. “A new DOJ team will need to be prepared to address these, and other, previous representations made by the withdrawing attorneys at the appropriate juncture.”

Hazel’s order came one day after Judge Jesse Furman similarly rejected the DOJ’s request to pull lawyers off the case in New York, finding that the motion was “patently deficient.”

Furman, an Obama appointee, ordered that each government attorney seeking to leave the case file a signed and sworn affidavit saying why they were doing so. He cited the Justice Department’s past assertions that the lawsuit challenging the citizenship question had to be resolved quickly and asked how changing the entire legal team would not cause further delays.

“If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time,” Furman wrote in his ruling Tuesday. He is also allowing the DOJ to refile the motion on pulling the attorneys.

Hazel noted in his own ruling that there is no local rule requiring the Justice Department lawyers to provide a reason for leaving the case and that he is “less focused on the formality of whose names appear at the bottom of future pleadings and more focused on the need for a transition of counsel that does not disrupt the orderly administration of justice.”

The judge’s order was in response to a motion filed by those opposing the citizenship question on Tuesday, which argued that allowing the DOJ lawyers to leave the case “will cause both severe disruption of the case and undue risk of prejudice to Plaintiffs’ rights.”

The Justice Department pushed back against those claims in a filing earlier Wednesday, writing that the staffing changes “will not affect the posture of the case or cause any disruption in this matter.”

Hazel is currently weighing whether there was a discriminatory intent behind the question’s addition to the 2020 census, a different legal matter than the one the Supreme Court addressed in its ruling on the question.

Judge Richard Seeborg, an Obama appointee who also oversees another case on the census citizenship question in California, told the DOJ on Wednesday to file a motion with his court on the withdrawal of government attorneys there, lawyers who participated in a teleconference with the parties told The Hill.

It’s unclear whether the DOJ will say why the lawyers are withdrawing from the case, as the local rule in that court does not require that a reason is provided. Laco did not return a request for comment by The Hill.

The Supreme Court found in a 5-4 ruling last month that the administration cannot include the citizenship question on the 2020 census for the time being because the evidence in the case didn’t match up with the rationale given for the question’s addition, which was enforcing the Voting Rights Act.

The justices sent the matter back to the Commerce Department to provide another reason for the question’s addition.

President Trump is now seeking to ensure that the question is featured on the 2020 population survey, even as census materials are being printed without a citizenship question.

The president is expected to issue an executive order or other directive requiring that the citizenship question be included on the 2020 census. However, legal experts told The Hill that they believe such an action would fail and that it’s likely to set off further rounds of court battles.

Tags Donald Trump Ed Case