A federal judge in New York blocked the Justice Department on Tuesday from replacing almost all of the lawyers defending the Trump administration’s efforts to add a citizenship question to the 2020 census, saying the government had not offered adequate reasoning for why it wanted new counsel.
The Justice Department announced the replacements on Sunday, days after President Donald Trump contradicted his own lawyers and said he would push ahead with adding a citizenship question to the 2020 census. Some saw the decision to replace the attorneys as a sign that the Trump administration was treading on shaky legal ground and did not want to make further representations to the court.
The Justice Department offered no explanation for why the lawyers were withdrawing and, on Tuesday, U.S. District Judge Jesse Furman said the government’s request to switch lawyers was “patently deficient.”
“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Furman wrote. He said he would allow two of the 11 attorneys to withdraw because they now had different jobs.
Furman ordered each of the attorneys to submit sworn affidavits explaining their “satisfactory reasons” for withdrawing. The plaintiffs in the case ― a group of states and advocacy groups ― are also seeking sanctions against the department for allegedly misleading them about the way the citizenship question was added. Furman also ordered that the lawyers who want to withdraw be available for any proceedings around that request.
The Justice Department declined to comment on Furman’s Tuesday ruling.
“So now the Obama appointed judge on the Census case (Are you a Citizen of the United States?) won’t let the Justice Department use the lawyers that it wants to use. Could this be a first?,” Trump tweeted Tuesday night.
A Maryland federal judge overseeing a parallel challenge to the citizenship question also denied the DOJ’s request to switch out the lawyers on Wednesday. U.S. District Judge George Hazel said he wanted certain assurances from the Trump administration that the switch would not disrupt the case and that the new lawyers would be able to address previous statements. Specifically, Hazel pointed to lawyers’ claim that the commerce secretary was the only official who decided to add the question.
The comment was a veiled reference to the fact the DOJ had changed its position in court after Trump said he wanted to pursue the citizenship question.
“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 made. 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 wrote.
It’s not normal for a court to deny a request to swap out an entire trial team. It’s not normal for either a President or an Attorney General to promise open defiance of the Supreme Court. No part of this is normal. Justin Levitt, a former top official in the Justice Department’s Civil Rights Division
It’s normal for attorneys to give reasons to “come and go on cases,” said Justin Levitt, a former top official in the Justice Department’s Civil Rights Division. But it was unusual to switch out an entire team of lawyers “in overtime, with no explanation,” he added.
“It’s not normal for a court to deny a request to swap out an entire trial team. It’s not normal for either a President or an Attorney General to promise open defiance of the Supreme Court,” he said. “No part of this is normal. No part of this is even normal-adjacent.”
It is “exceptionally unusual” for a judge to deny a DOJ request to switch attorneys, said Sasha Samberg-Champion, another former Justice Department attorney. “Usually DOJ lawyers are treated as pretty fungible for representation purposes,” he added.
The order, Samberg-Champion said, “suggests that Judge Furman is viewing these departing lawyers as, essentially, witnesses to potential misconduct whose testimony may be relevant to a sanctions motion.”
Dale Ho, an attorney with the American Civil Liberties Union who is representing some of the plaintiffs in the case, said the Justice Department “owes the public and the courts an explanation for its unprecedented substitution of the entire legal team that has been working on this case.”
“The Trump administration is acting like it has something to hide, and we won’t rest until we know the truth,” he said.
Furman blocked the Trump administration from adding a citizenship question to the census in January, and that decision was upheld by the Supreme Court last month. The Justice Department said no citizenship question would appear on the census last week, but then Trump said he would push ahead and try to find a way to get the question on the survey.
Trump’s push caught the attorneys off guard, and they were forced to reverse their position a day later in federal court.
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