Trump is trying hard to rig the census. Attorney General William Barr is helping him. But the judge on the case isn’t going to lend a hand.
Late Tuesday, Judge Jesse Furman, who is overseeing litigation on the citizenship question in a case in the Southern District of New York, refused to let the current Department of Justice lawyers withdraw from the case. To say he’s unhappy with the DOJ would be an understatement.
It appears likely that the career lawyers who had handled the census litigation became highly uncomfortable with Trump’s decision to pursue getting the citizenship question on the census regardless of the recent Supreme Court decision telling him he couldn’t.
They may also be uncomfortable with their boss. On Monday, Barr said Trump “is right on the legal grounds” and that he “felt the Supreme Court decision was wrong.”
That’s because those lawyers stood up in several court proceedings and insisted the matter had to be decided by June 30. Then, when the Supreme Court ruled against Trump, the administration suddenly decided that June 30 wasn’t a deadline after all. That means those career lawyers would now have to admit to the court that the June 30 deadline was fictional, and they’d now like a do-over to invent a different reason to put the citizenship question on the census.
However, the DOJ found lawyers, including an attorney who had previously worked in the Trump White House, who were just fine with this plan. So on Sunday night, the DOJ filed a Motion to Withdraw as Counsel, asking the court to swap in the new team.
But Judge Furman said, very clearly, no.
For a lawyer to withdraw from a case, they need a “satisfactory reason” for the withdrawal. The judge noted that the DOJ didn’t bother to provide any reasons at all, so that’s a problem.
Lawyers also need to show that their withdrawal from the case wouldn’t cause any disruption to the court proceedings. There, the DOJ didn’t say much of anything either, except that they expect it won’t cause any problems.
But, as the judge pointed out, there are a lot of things happening in the case in a very short time period:
Defendants’ opposition to Plaintiffs’ most recent motion is due in just three days, Defendants’ opposition to Plaintiffs’ anticipated motion for sanctions is due later this month, and, in the event that Defendants seek to add the citizenship question to the 2020 census questionnaire based upon a ‘new rationale,’ time would plainly be of the essence in any further litigation relating to that decision.
The judge also pointed out that the administration has litigated this entire case based on the idea that the “speedy resolution of Plaintiffs’ claims is a matter of great private and public importance.” It’s pretty tough to argue that things have to move incredibly quickly, but you somehow also have time to get an entirely new legal team up to speed.
Judge Furman did give the DOJ a bit of an out. They can file a new motion to withdraw the existing legal team, but it must be supported by a “signed and sworn affidavit” from each current attorney on the case, and it has to state “satisfactory reasons” for leaving the case.
In other words, the judge is likely putting the career lawyers on the spot. They can admit in a public affidavit that they are leaving because Trump’s mercurial nonsense made them unable to continue, or they can stay on a case where they may have to lie about the administration’s reasons for the citizenship question.
Judge Furman had another condition for the affidavit as well. Anyone who leaves the case has to agree that if the court wants them back for any hearings — including the sanctions hearing — they will come back.
Finally, the new legal team would also have to file an affidavit that says swapping in new counsel “will not delay further litigation of this case (or any future related case).”
Published with permission of The American Independent.