Lawyers for the group of states and nonprofit organizations challenging the effort to place a citizenship question on the census were back in federal court on Monday. This time the issue wasn’t directly about the census question. It concerned Attorney General William Barr and the decision to make a last-minute change in the entire DOJ legal team.
Anytime an organization sues the federal government, things start out as an uphill climb. After all, when your opponent has essentially unlimited funds, unlimited attorneys, unlimited investigators, and unlimited access to information, the playing field is not exactly even. What those opposing the census question had on their side was the very clumsy, and all too public, discussion by Republicans both inside and outside the White House, about how planting that citizenship question could be used to intimidate some respondents and to purposely promote an under-count in certain districts and states. That none-too-subtle racism, paired with laughable claims about defending the Voting Rights Act, turned the Trump position into one that not even the most Trump-friendly Supreme Court could uphold.
But, in the midst of a whole flurry of confusion and lies, after claims that the census had to begin printing by July 1, and then statements that it is getting printed, Barr’s “Justice” department is attempting to deploy its deep legal pockets to maximum advantage. The White House isn’t just changing its whole theory of why the citizenship question is required, it’s also benching its entire legal team and bringing in new lawyers top to bottom.
That the question wasn’t resolved by losing in every federal court is pure Trump. That the Justice Department is trying to throw out its entire case and start over with a new theory, new approach, and new attorneys is pure Barr. After all, a bunch of bright shiny new faces before the court means none of them have to defend what was said in round one.
Barr’s team knows who they are facing, knows the grounds of the argument, and has a document from the Supreme Court that contains a neat set of boundaries for their potential argument. The opponents of the citizenship question are being asked to stand by to face an unknown group arguing on unknown grounds—on an expedited “emergency” basis. It’s not surprising that they don’t find that a fair situation.
As The Washington Post notes, Barr told reporters on Monday that he has been in “constant discussions” with Trump over what approach they can take because they still don’t know what that approach may be. Barr says they are still “considering all the options.”
For plaintiffs who just fought and won a case at every level up to and including the Supreme Court, where the basis of the Trump White House argument was the crux of the final decision, being asked to stand by while a new team prepares a new, undisclosed, argument is like being asked to play goalie repeat of the championship game. Blindfolded.
The argument from the DOJ is that replacing every single member of their team shouldn’t “cause disruption” in the case. It has already caused disruption. The plaintiffs have asked the judge to demand a reason for the lawyers’ withdrawal. And “because we’re losing” is not a sufficient reason.
Should Barr succeed in actually getting back into court with new reasoning and new attorneys, he still has to put forward an argument that the Republican majority on the Supreme Court can hold their nose long enough to support. Which could easily be an issue.
And there’s another problem. Assuming that the census has begun production, as the Commerce Department has stated, Democratic Representative José Serrano, who chairs the subcommittee of the House Appropriations Committee responsible for the census, has already signaled that he will not provide the funds for a do-over.
If Trump wants a census question on citizenship, he’ll have to find the funding … maybe by taking it from his wall. And he’ll have to actually win one in the courts.