No Exit for Justice Department Counsel in NY Census Suit

MANHATTAN (CN) – An attempt by the Department of Justice to withdraw 11 attorneys from the New York phase of the 2020 census litigation is “patently deficient,” a federal judge found in a scathing order Tuesday afternoon, ruling that nine of them will not be able to leave.

(AP Photo/J. Scott Applewhite)

The other two attorneys, Brett Shumate and Alice LeCour, have left the Justice Department’s Civil Division and will be allowed to withdraw from the hotly disputed litigation.

“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” U.S. District Judge Jesse Furman wrote in a 3-page opinion.

Since a narrow Supreme Court majority blocked the government from including a citizenship question from the once-in-a-decade survey, the Justice Department has sent mixed signals about its next steps.

The high court had ruled that the introduction of the question on a false pretext violated the Administrative Procedure Act, but pending litigation in New York and Maryland raised the issue that the government wanted to add it to discriminate against immigrants of color. The discovery of evidence showing the question had been designed to benefit “Republicans and non-Hispanic whites” gave those cases new traction.

Seeking to cut their losses, the Commerce Department announced shortly after the June 27 ruling that the agency had been printing the surveys without the citizenship question, and the government would not seek to reintroduce it.

Last week, Justice Department attorneys promised a federal judge in Maryland that they would drop the matter “once and for all.”

Then, a day later, President Donald Trump contradicted them in a tweet, and the Justice Department quickly backtracked, regrouped, and—in a move widely interpreted as an attempt by career government attorneys to distance themselves from the case—sought to replace their legal team.

Judge Furman reminded the Justice Department that the court has restrictions on what circumstances allow the substitution of counsel.

“An attorney who has appeared as attorney of record for a party may be relieved or displaced only by order of the court and may not withdraw from a case without leave of the court granted by order,” those guidelines read. “Such an order may be granted only upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its position, if any, on the calendar, and whether or not the attorney is asserting a retaining or charging lien.”

The judge found that the government failed to meet that bar.

“Measured against those standards, defendants’ motion is patently deficient,” Furman wrote.

Even though multiple federal judges have issued injunctions blocking the government from adding the citizenship question to the 2020 census, President Trump has floated the idea of reintroducing the query via an executive order. Justice Department attorneys could face sanctions for violating an order or misleading a court.

Former federal prosecutor Renato Mariotti interpreted the ruling as a signal that Furman would hold the Justice Department accountable for its stances in the litigation.

“If they are in the case, and they contradict what they told the judge previously, he could hold them in contempt,” Mariotti tweeted.

The New York Attorney General’s office, which is leading the Manhattan litigation against the government, did not immediately respond to a request for comment. The Justice Department declined to comment, but Trump tweeted in reaction to the ruling late Tuesday.

“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,” the president wrote, referring to Furman. “Could this be a first?”

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