US Justice Department headquarters in Washington. Photo: Diego M. Radzinschi/ALM

The U.S. Justice Department on Monday announced a new team of lawyers in court cases backing the Trump administration's drive to put a citizenship question on the 2020 census, despite a recent U.S. Supreme Court ruling that called the government's motivations “contrived” and upheld an injunction blocking the effort.

The new legal team, led by a former Trump White House lawyer, replaces Justice Department lawyers who had argued for more than a year that the Trump administration faced a June 30 deadline to wrap up its printing plans for the upcoming decennial census. The government pointed to that deadline in urging lower judges, and the U.S. Supreme Court, to quickly review lawsuits and to rule by that date.

Swapping out government legal teams is rare, and it's a possible sign that the Justice Department attorneys assigned to the census cases either refused to continue or faced an ethical dilemma by their continued service, according to former Justice Department lawyers. The new team of lawyers could make arguments in court that undermine statements made by the trial court lawyers and Supreme Court team, led by Noel Francisco, the U.S. solicitor general.

“It almost certainly means that some or all of the lawyers involved in the cases are unwilling to contribute to or sign briefs that will contradict the representations DOJ, and the SG, have made to the courts,” Martin Lederman, a law professor and former Obama-era Justice Department lawyer, said in a blog post.

The Supreme Court's decision last month in a census case stopped the Trump administration from moving forward to add a citizenship question, which the challengers in cases in New York, Maryland and California said would discourage Hispanics and other non-citizens from responding. Still, the justices gave federal officials the opportunity to develop a new rationale to justify adding the question. The Justice Department has said it is pursuing various avenues to get around the Supreme Court ruling.

The 11th hour maneuvering comes days after the Justice Department told a Maryland federal judge, presiding over one of the census cases, that the Trump administration would not include a citizenship question. A tweet from President Donald Trump, saying his administration “absolutely” would not back down, upended the representations DOJ lawyers made in court. One of the lawyers, Joshua Gardner, who withdrew from the case Monday, told a Maryland judge last week: “I am doing my absolute best to figure out what's going on.”

The DOJ's new legal team—including Christopher Bates, Glenn Girdharry, Colin Kisor, David Morrell, Christopher Reimer and Daniel Schiffer—features of mix of political appointees and career government lawyers from the department's consumer protection branch and office of immigration litigation.

Morrell, leading the team, is a deputy assistant attorney general who joined the Justice Department in May from the White House. He had been an associate at Jones Day from 2013 to 2017, and he was part of the early wave that joined the Trump administration. Morrell clerked for Justice Clarence Thomas during the 2012-2013 term, and he earlier clerked for Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit.

Bates joined the Justice Department in April as a senior counsel to Hunt. Girdharry, who joined the Justice Department as a trial attorney in 2010, now serves as assistant director in the office of immigration litigation, where Kisor is deputy director.

Reimer and Schiffer both work in the civil fraud division within the Justice Department's consumer protection branch. Schiffer had been an associate at Morgan, Lewis & Bockius before joining the Justice Department in 2014.

Attorneys from DOJ's federal programs branch, a component of the civil division that defends federal agencies in court, had taken the lead in defending Trump officials in the census litigation. Lederman, who teaches at Georgetown University Law Center, said the appearance of lawyers from the other civil division branches “suggests that perhaps the entire federal programs branch is refusing to have anything to do with” the census case any longer.

The Justice Department has declined to say why the agency is installing a new team of lawyers at this stage of the litigation.

DOJ federal programs branch lawyers who had been litigating census cases until now included 16-year veteran Gardner, Garrett Coyle, Stephen Ehrlich, Courtney Enlow, Martin Tomlinson, Kate Bailey, Daniel Halainen and Carol Federighi. James Burnham is the deputy assistant attorney general overseeing the federal programs branch, and John Griffiths is the director. Burnham, a former Jones Day associate, was named deputy assistant general in April. Carlotta Wells, an assistant director in the federal programs branch, has also appeared in the census cases.

“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,” a Justice Department spokesperson said in a statement Sunday. “The Attorney General appreciates that service, thanks them for their work on these important matters, and is confident that the new team will carry on in the same exemplary fashion as the cases progress.”

The Justice Department hasn't announced its next steps in the census litigation. Trump told reporters over the holiday break that the administration was thinking about an executive order, a move that would invite further litigation.

The Supreme Court upheld an injunction against Trump issued in the New York case, and now the attorneys in that challenge, led by teams from the American Civil Liberties Union and Arnold & Porter Kaye Scholer, want a judge to hold the government to its word that June 30 was the deadline for the Trump administration to finalize its census plans.

“The Trump administration repeatedly argued the census forms could not be altered after June 30. They've now changed their tune because the Supreme Court ruled against them. They can't have it both ways,” said Dale Ho, director of the ACLU's Voting Rights Project.

US District Judge George Hazel, appearing in 2013 at his confirmation hearing. Photo: Senate Judiciary

Meanwhile, U.S. District Judge George Hazel in Maryland is preparing to hold new hearings on whether the Trump administration acted with discriminatory motivations in pushing for the citizenship question. The government argued that it needed the data to help enforce the Voting Rights Act, but the challengers contend that this rationale was pretextual and masked the true desire to reduce the number of Hispanic residents in an effort to influence election maps that benefit Republicans.

New evidence recently emerged suggesting a direct connection between a Republican redistricting specialist who championed a citizenship question and the Commerce Department, which oversees the census bureau. Justice Department officials have disputed the relevancy of the evidence, and the Supreme Court's decision did not make any reference to it.

Hazel on Friday refused to pause the proceedings in his court to allow the government to explore any new argument to defend putting a citizenship question on the census.

“Regardless of the justification defendants may now find a 'new' decision, discovery related to the origin of the question will remain relevant,” Hazel said in an order. “Given that time is of the essence, therefore, the prudent course is to proceed with discovery.”

 

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