Judge writes a scathing order slapping down the DOJ's attempt to switch lawyers in the Census case

Judge writes a scathing order slapping down the DOJ's attempt to switch lawyers in the Census case
Secretary of Commerce Wilbur Ross | 7/25/17 (Official White House Photo by Evan Walker)

In a concise and brutal order, Judge Jesse Furman ruled Tuesday that the Justice Department cannot switch its lawyers arguing the Census case.


Legal experts were stunned when the department said Monday that it would be employing new attorneys to argue the matter, an indication the DOJ lawyers who had been working the case were unable or unwilling to faithfully make the administration's arguments. The Supreme Court has already ruled against administration's efforts to put a citizenship question on the Census, but President Donald Trump has persisted in pushing for its inclusion. One major problem in continuing this effort is that the Justice Department lawyers repeatedly argued that a final decision on the matter had to be made by the end of June 2019, and any attempt to continue the case will obliterate that deadline. The lawyers likely want to avoid embarrassing themselves and contradicting their previous statements.

But Judge Furman is refusing to let them out of their obligations so easily. The motion to withdraw was, he said, "patently deficient."

He noted that there are two requirements for the attorney to be relieved in the case. First, the lawyers must explain a "satisfactory reason" for the change and the potential impact on the timing of the case.

He allowed two of the lawyers in question to leave on account of changes in their employment status, but the others must stay for now.

"Defendants provide no reasons, let alone 'satisfactory reasons,' for the substitution of counsel," he wrote. "And as to the second factor, Defendants’ mere 'expect[ation] that withdrawal of current counsel will [not] cause any disruption' is not good enough, particularly given the circumstances of this case: Defendants’ opposition to Plaintiffs’ most recent motion is due in just three days."

Furman also threw the government's own claims back in its face. He pointed out that, if the Justice Department plans to provide a "new rationale" for the citizenship question, "time would plainly be of the essence in any further litigation relating to that decision."

"As this Court observed many months ago, this case has been litigated on the premise — based 'in no small part' on Defendants’ own 'insist[ence]' — that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance," he wrote. "If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time."

The lawyers may refile their motion to switch out, the order said. But they will have to show "satisfactory reason" for the change and, perhaps most troubling, Furman said they need to commit to being available in the case that sanctions are issued.

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