Thomas B. Hofeller, a leading Republican strategist who passed away last year. Hofeller’s digital files were made public as part of the U.S. census question on citizenship litigation. Photo: C-SPAN via AP

The Trump administration on Saturday rebuffed arguments from civil rights groups that two government-affiliated witnesses falsely testified about the origin of a question concerning citizenship that was planned for the 2020 U.S. Census.

That question has since been removed from the national survey after the U.S. Supreme Court, in June, rejected the federal government’s reasoning for adding it in the first place.

Attorneys for the New York Immigration Coalition, a plaintiff in the litigation, moved last month to impose sanctions on the U.S. Department of Justice for allegedly providing false testimony about the question’s genesis. They claimed that a long-time Republican redistricting specialist, named Thomas Hofeller, had been involved in discussions on the matter. 

The American Civil Liberties Union, New York Civil Liberties Union, and law firm Arnold & Porter Kaye Scholer are representing the New York Immigration Coalition in the lawsuit.

Attorneys for the Trump administration, early Saturday morning, argued in a response to the motion for sanctions that the plaintiffs’ claims weren’t factually accurate and couldn’t be proven, regardless of how the matter proceeds.

“The various allegations on which this charge is based … rest on speculation and misrepresentations of the record—rather than actual evidence—and are now directly rebutted by the facts,” the filing said. 

The litigation could take another turn in the future if U.S. District Judge Jesse Furman of the Southern District of New York allows the plaintiffs to pursue additional discovery. 

As part of their motion for sanctions, they’re seeking a series of documents from the Trump administration that were previously labeled as privileged, and consequently shielded from the lawsuit. Those documents pertain to how the citizenship question was crafted by federal officials.

That would include different drafts of a letter from the DOJ to the U.S. Department of Commerce formally requesting that the question be added to the census. That letter was written by John Gore, a senior DOJ official, who’s one of two witnesses at the heart of the plaintiffs’ motion.

They alleged in a surprise filing about two months ago that Gore, along with A. Mark Neuman, a member of Trump’s transition team, had failed to disclose Hofeller’s involvement in crafting the citizenship question. The DOJ has claimed that Hofeller had no part in the question.

Hofeller wasn’t previously claimed to have been involved in discussions on the citizenship question, but that changed when some of his digital files were produced as part of an unrelated case in North Carolina. Hofeller died last year before those files were made public as part of the litigation.

It’s now alleged by the plaintiffs that those files can be directly tied to the Trump administration’s justification for seeking to ask about citizenship on the census. 

One of the documents unearthed in the North Carolina case, for example, contained a paragraph that was included verbatim in an alleged early draft of the DOJ’s letter to the Commerce Department. That early draft was allegedly penned by Neuman, who gave it to Gore to produce a final version, the plaintiffs said.

The final letter, while ghostwritten by Gore, was signed by Arthur Gary, another senior official at the DOJ. 

But, in the filing Saturday morning, the DOJ claimed that Gore did not base any part of the final letter to the Commerce Department on the materials that Neuman gave him. That would make any conversations he had with Hofeller — which he admitted to having during his deposition last year — irrelevant to the final letter, the DOJ said.

“After their first and only meeting, Gore had no further written or oral communications with Neuman, and did not rely on the Neuman Letter, or any other information he received from Neuman, in drafting the Gary letter,” the filing said.

The final letter to the Commerce Department, the plaintiffs claimed, also contained “striking similarities” to language used by Hofeller in a study he conducted in 2015 on the use of citizen voting age population data for redistricting versus total population count. He was commissioned for the study by the Washington Free Beacon, a conservative website.

The Trump administration rejected that connection in its filing Saturday morning as well, saying that Hofeller’s study, which was never published, wasn’t used by Gore in the final draft of the letter.

“That, too, is a makeweight argument based on purported testimony having no discernible bearing on this case,” the filing said. “Again, Gore neither relied on Hofeller’s unpublished 2015 study nor was even aware of it when drafting the Gary Letter.”

The plaintiffs in the case are scheduled to file a response to the Trump administration’s filing later next week, after which Furman will decide whether to grant their motion for sanctions or not. 

Furman, who presided over last year’s trial in the Southern District over the citizenship question, has previously granted the plaintiffs a wide breadth on discovery in the litigation. Months ahead of the trial last year, he allowed them to pursue extra-record discovery, in a move that was long-opposed by the Trump administration.

The Supreme Court, in its decision in June, said Furman shouldn’t have granted that motion at the time, but that it was ultimately justified in expanding the administrative record.

“We agree with the Government that the District Court should not have ordered extra-record discovery when it did,” the decision said. “At that time, the most that was warranted was the order to complete the administrative record.”

He could choose to, again, allow additional discovery in the litigation while the plaintiffs pursue their motion for sanctions. That decision is expected in the coming weeks after the plaintiffs reply to the Trump administration’s arguments filed Friday.

The litigation from the New York Immigration Coalition was combined, last year, with a separate lawsuit on the matter led by the New York Attorney General’s Office. That office is not involved in the motion for sanctions, according to filings.

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