DOJ Lawyers Who Had Represented Government in Census Case are Being Replaced: An Ominous Development

[Gothmog]

Source: Electionn Law blog

My thoughts on the news via Del Wilber:

Link to tweet

Read more: https://electionlawblog.org/?p=106106

[Thomas Hurt]

1. found em new set who are willing to risk throwing away their licenses for Trump...

[elleng]

2. Right

[Gothmog]

8. No career types would want to be involved in this shipwreck

[elleng]

9. Right. USED to be that working for DoJ was among the BEST reference for future jobs;

MANY disappointed by today's goings-on.

[calimary]

32. More mini-Barrs.

[Gothmog]

50. Census farce: Trump, Barr and the Justice Department make a mockery of the law

there are some lawyers who need to worry about their careers https://www.washingtonpost.com/opinions/2019/07/07/census-farce-trump-barr-doj-make-mockery-law/?utm_term=.08e03966936c

The entire debacle raises serious questions about the credibility and honesty of the Justice Department. “The Trump administration lied to the courts about the real reason for the citizenship question. And they got caught by the Supreme Court,” Mimi Rocah, a former federal prosecutor, tells me. “Now Trump has directed DOJ lawyers to come up with some other lie. No DOJ lawyer should sacrifice her integrity with the courts for this or any administration.”

Trump’s contempt for the rule of law and blatant dishonesty would not continue without the help of underlings. And they must do some serious soul-searching. “There are some things no DOJ lawyer can do. One of those is make arguments in court that are untrue in order to benefit the political whims of a president,” Joyce White Vance, a former prosecutor, says. “If DOJ’s leadership, the [attorney general,] the deputy AG, the solicitor general and the head of the Civil Division [don’t want to be] complicit in violating the duty of candor DOJ lawyers owe to the court, then they should resign on principle and in protest.”

They won’t resign en masse, of course, because the professional and ethical expectations have been so diminished in this administration that the unimaginable is now standard operating procedure for both political appointees and career lawyers.

“Make no mistake: The government lawyers — appointees and civil servants alike — who are spending this weekend trying to cleanse the record of this fact and salvage this plan are employing their legal skills in the service of white power,” Bassin says. “That’s not just a violation of their oath of office, it’s an abdication of the basic morality on which we all as human beings are ultimately judged. They don’t have to do this. We all make choices.”

[Iliyah]

3. This will backfire on Republicans.

[yaesu]

6. nothing backfires on them because tRumps base loves it nt

[Iliyah]

10. Yes it does.

Russians and Saudi Arabia excluded.

[Arkansas Granny]

12. This is so true. Trump's cult is willing to let him get by with anything

as long as they think he's "sticking it to the libs". They don't see or don't care what he is doing to the rule of law or the reputation of the U.S. throughout the world.

[StClone]

36. It has come down to if "Libs like or want it-destroy it."

They have no real belief system other than power, money, fear and hate. Basic instincts.

[TeamPooka]

34. there are more of us than there are of them. GOTV!

[a kennedy]

4. WTF???

Who will stand up to this orange piece of shit!!!!!!!!!

[bucolic_frolic]

5. For Donald, Carnival Barker, it's all about marketing, and this is desperation pure and simple

Changing horses in midstream. Any judge who bends to this will be laughed off his bench by his colleagues.

[SergeStorms]

37. Do you mean...

like all five conservative judges on the Supreme Court? They'll eat a bucket-full of Trump's shit just so he'll say, "Nice job, boys"!

[bucolic_frolic]

40. Roberts worries me

He defers to power and the President, as he did in legalizing Obamacare. He could do the same here, rationalize a citizenship question as the perogative of the incumbent President or the power of the Presidency.

But hackles await any kowtow after so much wrangling and rejection by so many judges, and the previous reasons given to attempt to legitimize the question. You can't erase this case's history.

[babylonsister]

7. And it doesn't matter if it's so blatant? nt

[Gothmog]

11. Are you surprised?

Subtle is not in trump's vocabulary

[babylonsister]

15. No. Not even.

My level of disgust knows no bounds.

[Gothmog]

13. From Dale Ho of the ACLU

No one wanted to be involved in telling lies to the court

Link to tweet

[hlthe2b]

14. More on the Clusterf...k DOJ attempt to satisfy the Orange Menace

This is really intriguing. Looks like maybe the leadership of DOJ Federal Programs (which usually would have representation here) declined to go along with this farce, but Consumer Protection Branch (!) volunteered to take over.

Per a DOJ official (declined to be ID'd), the new team in the census litigation will include a mix of political appointees and career lawyers, drawing more from the Consumer Protection Branch, as opposed to Federal Programs. Official declined to get into the *why*

Link to tweet

[Gothmog]

17. Consumer protection branch lawyers?

This is getting strange

[hlthe2b]

18. pretty soon it will fall to the receptionist who has watched the most legal shows on tv...

[tishaLA]

22. "I KNEW those hours of Law and Order SVU would pay off!"

"....and I'd like to thank Mariska Hargitay."

[DeminPennswoods]

25. Another job for Jared!

nt

[Captain Zero]

39. or...Ivanka could show up with a legal pad and a flip of her hair to really wow 'em.

[MissB]

47. Has Tiffany finished law school yet?

[underpants]

27. Clustertrump

Use it.

[hlthe2b]

28. yup... fitting...

[SeattleVet]

38. Actually, it makes sense (for this misadministration, anyway)

Send lawyers from the Consumer Protection Branch, which he wants to strip to the bare bones.

These lawyers get caught lying to the court, they get sanctioned, and ... tRump suddenly has fewer people protecting consumers.

I wonder what 'incentives' he had to offer them to put their careers on the line like this.

[Gothmog]

49. Barr: Trump Admin Has 'Pathway' To Get Citizenship Question Back On Census

Link to tweet

[Gothmog]

56. More attorneys are withdrawing

Link to tweet

[KY_EnviroGuy]

16. A couple of thoughts extracted from Jennifer Taub's Twitter page....

Texts:

Noah @DefToolNIN
8:32 PM - Jul 7, 2019

Bottom line: If attorney’s don’t argue this case as Wilbur Ross did, they will be contradicting his testimony which will expose him to perjury.

Because Ross LIED about the reason for the census question, they will either lose, or concede that Ross committed perjury.

===============

Geriatric Millenial JD @Errorreporrt
8:12 PM - Jul 7, 2019

The explanation is they didn't want to be sanctioned when they came back to a judge and told them they were apparently lying about the time restraints.

-------------

KY.......... ........

[Gothmog]

19. Neal Katyal is curious

Link to tweet

[EndGOPPropaganda]

26. Unfortunately, Neal Katyal got us into this mess.

Neal Katyal helped get us into this mess by endorsing Gorsuch

Link to tweet

Link to tweet

Link to tweet

[Duppers]

41. Oh damn.

I didn't know that.

Thank you.

[EndGOPPropaganda]

54. It's sad :(

[Skittles]

20. is there no end to the number of people willing to disgrace themselves for that vile piece of shit??

[KPN]

23. Seemingly no. Remember 35-40 of the voting public

supports Donald tRump, and that is based principally in whit male supremacy and fascist ideology.

[dlk]

21. Considering They Could be Facing Disbarment for Repeated Lying to the Court

They’re hoping to save their careers, or what will be left of them.

[Gothmog]

48. Sometimes a Justice Department lawyer must just say 'no'

From the Washington Post https://www.washingtonpost.com/opinions/2019/07/08/somtimes-doj-lawyer-must-just-say-no/?utm_term=.8047534f232a

Mimi Rocah, a former prosecutor, surmises: “There are DOJ lawyers not willing to lose their integrity with the courts for Trump. I’m proud to see that. And judges will notice too.”

Others agree that swapping out lawyers is highly unusual. “It’s extraordinary and downright bizarre to see the government parachute in new lawyers at this late stage of the litigation,” says legal scholar Joshua Matz. “If past is prologue, this may indicate that we’re about to see some extremely sketchy moves that the existing team was unwilling to take for professional or reputational reasons.” That the administration would have to go so far afield, to recruit consumer protection lawyers, “suggests that the entire federal programs branch of the Justice Department is unwilling to defend whatever the administration plans to file.”

This is not the first time in this presidency a set of lawyers has dropped out of a case brought on specious grounds. In the case seeking to invalidate the entire Affordable Care Act, three career attorneys withdrew without signing onto a brief many considered legally preposterous.....

Not to put too fine a point on it, but what these lawyers do will have profound consequences for the country and their careers. Constitutional scholar Larry Tribe warns, “The Department of Justice cannot avoid the long-term credibility cost to its litigating posture of contradicting itself in successive filings simply by changing the names of the career DOJ lawyers on the pleadings or by bringing new faces into court. If that’s the aspiration, it’s not going to succeed.”

The new team of lawyers should think very carefully before accepting an assignment from an attorney general not above misrepresenting the work of a special counsel or adopting the role of the president’s private counsel.

[Gothmog]

24. A political appointee/ex Jones Day partner leaving census case

Link to tweet

[watoos]

29. Speaker Pelosi has this, no worries,

When Trump defies 3 or 4 court orders we will have a very, very, strong case for impeachment.

[marylandblue]

31. She is not going to impeach because the Senate is not going to convict.

The Senate is not going to convict because they have given Trump carte blanche. They have given Trump carte blanche because he may create a permanent Republican ruling elite. If he succeeds, good. If he fails, they all run for cover and they are no worse off than they were before.

They don't care what history thinks of them because history doesn't vote or make campaign contributions.

[Gothmog]

42. Without 20 GOP Senate votes, impeachment is a waste of time

[Ilsa]

30. Someone in the thread raised the question about

whether the census lawyers can convince the judge to disapprove of the attorneys being replaced.

[machoneman]

57. May not need to. See, the very first thing the new ones will ask for is a long continuance to....

...get up to speed on the case. This would be a direct refutation of the earlier arguments that time was of the essence and damn the court's priorities in 'jumping' the case. It's a fool's paradise for sure but just watch for this or even more ludicrous steps they will take.

[forgotmylogin]

33. I hope this crashes and burns, but..

if they do manage to include the question, I think the judge should also require them to include a "No answer." option. Or at least instruct the census-takers to honor no answer/refusal to answer for that question and leave it blank. Same as "Ethnicity" which on most forms usually has a "prefer not to answer" box.

If enough people just don't answer it, the data will be useless to them.

[Iliyah]

35. Executive Order . .

Hopefully be tied up in court. Republicans again - nada.

They fear they are running out of time. Ya think since for many years they always claimed patriotism, it was always the reverse.

[Gothmog]

43. An executive order cannot over rule SCOTUS ruling

[BlueIdaho]

44. Since the Constitution places the Census

Under the control of congress - can an executive order ever really be legit?

[Gothmog]

45. From Prof. Tribe

Link to tweet

[Gothmog]

46. Washington Post-Opinion: Trump's corruption is getting worse.

Link to tweet

The Justice Department just announced that it will swap out the lawyers who are representing the administration in the legal battle over the effort to add a citizenship question to the 2020 Census. This battle continues because Trump ordered the administration to keep fighting to add the question, even though officials had surrendered after the Supreme Court ruled against it.

As The Post reports, the change in the legal team might signal “legal or ethical concerns” about Trump’s handling of the affair. One source said such concerns were harbored by some “career attorneys.”

It gets worse. A Justice Department lawyer tells the New York Times that due to the switch, no lawyers from the division that defends administration policies in court — the federal programs branch — will be working on the case.

The Times adds that the move strongly suggests that career lawyers “decided to quit a case that at the least seemed to lack a legal basis,” or worse, could force them to defend statements that “could well turn out to be untrue.”

[mahatmakanejeeves]

51. Why is Barr transferring responsibility for the census cases to the DOJ Consumer Protection Branch?

Prof. Garrett Epps Retweeted

1/ Why is AG Barr transferring responsibility for the census cases to the DOJ Consumer Protection Branch, given that its functions have nothing to do with the census? Watch for the name David Morrell, recently appointed to be Deputy Assistant AAG in charge of the CP Branch.

Link to tweet

2/ Morrell clerked for Edith Jones and Clarence Thomas--then worked at Jones Day and in the White House Counsel's Office. No surprise he'd be in charge. Watch for whether any career lawyers agree to join, and whether OSG is on-board, despite its earlier representations re: 06/30.

Link to tweet

More on the SG and the deadline here:

Link to tweet

[Gothmog]

52. Edith Jones is a very nasty and conservative judge on the 5th Cir

[dchill]

53. Wouldn't it be easier to just replace the president?

[Gothmog]

55. Plaintiffs have moved to block old DOJ attorney's leaving case

Link to tweet

[Gothmog]

58. A second federal judge has refused to let attorneys withdraw

Link to tweet