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Jul 10 2019

Deader Than A Door Nail

I don’t mean to say that I know, of my own knowledge, what there is particularly dead about a door-nail. I might have been inclined, myself, to regard a coffin-nail as the deadest piece of ironmongery in the trade. But the wisdom of our ancestors is in the simile; and my unhallowed hands shall not disturb it, or the Country’s done for.

Oh, I don’t mean Marley. He was dead a long time before 1843 according to Mr. Dickens so we will give no more thought to the matter. No, I’m talking about the Citizenship Question on the 2020 Census.

Judge Jesse is steamed.

Federal judge rejects Trump administration’s bid to swap out lawyers for census case on citizenship question
By Matt Zapotosky, Seung Min Kim, and Tara Bahrampour, Washington Post
July 9, 2019

A federal judge in New York on Tuesday denied a bid from the Justice Department to replace the team of lawyers on the case about the census citizenship question, writing that its request to do so was “patently deficient.”

The department had earlier this week announced its intention to swap out the legal team on the case, without saying exactly why.

A person familiar with the matter said the decision was driven in part by frustration among some of the career lawyers who had been assigned to the case about how it was being handled, though the department wanted to replace those in both career and political positions.

But U.S. District Judge Jesse M. Furman denied the formal, legal bid to do so.

“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Furman wrote. He also noted that a filing in the case was due from the department in just three days, and that the department had previously pushed for the matter to be moved along quickly.

“If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time,” Furman wrote.

Furman said the department could refile its request, if it gave “satisfactory reasons” for the attorneys’ withdrawal and promises that the attorneys who had worked the case previously would be available upon request. The judge also asked the department to “file an affidavit providing unequivocal assurances that the substitution of counsel will not delay further litigation of this case (or any future related case).”

Furman did allow two attorneys who had previously left the Justice Department or its Civil Division to be removed.

Furman’s move could force the Justice Department to expose more of its messy, internal debates over the census case. Those attorneys who object to the handling of it might proceed without signing briefs, serving up a regular, public reminder of how fraught the case has become internally. The department might also choose to lay out more detailed reasons for wanting the attorneys off in a subsequent request.

The Justice Department declined to comment on the judge’s decision.

New York Attorney General Letitia James took a tacit swipe at Trump in reacting to the ruling.

“Despite the president attempting to fire his lawyers, this is not an episode of ‘The Apprentice.’ Judge Furman denied his request and required the administration to comply with the rules regarding substitution of counsel, ” said James, in a reference to Trump’s onetime television show.

Justin Levitt, an election law professor at Loyola Law School who was a deputy assistant attorney general in the Department of Justice’s Civil Rights Division from 2015 to 2017, said he had never seen the department swap out an entire team in the middle of litigating a case.

The move was particularly odd given that the previous team was composed of experts in administrative procedure who were steeped in the details of the census litigation, he said. The new team, pulled together from the department’s consumer protection, civil fraud, and office of immigration litigation components, is “a truly random assortment,” he said.

“It’s a hodgepodge of people whose roles have absolutely nothing do to with the conduct of the census or with proper administrative procedure. That should give everybody pause about what’s coming next.”

Intensifying the political battle, House Democrats threatened to block funding for government efforts to ask about citizenship status as the White House continued to ponder an executive order to force the issue.

“I have no intention of allowing this flagrant waste of money,” Rep. José E. Serrano (D-N.Y.), who leads the House panel overseeing funding for the Commerce and Justice departments, said in a statement. “I once again urge the Trump administration to give up this fight and allow for a depoliticized and accurate census, as we always have.”

A spokesman for the House Appropriations Committee confirmed Democrats would seek to block taxpayer money from funding any efforts by the Trump administration to ask about citizenship in next year’s survey “if the issue has not been rendered moot by the courts.”

When it was anticipating a win in the Supreme Court, the government held fast against the possibility of pushing past the July 1 deadline. In a filing last month, Solicitor General Noel Francisco told the high court that an assertion by one of the plaintiffs that the forms could be finalized as late as Oct. 31 “is unsupported by the record.”

Other brewing fights are sure to keep the Census issue front and center in the coming weeks.

The Democratic-led House is set to vote before leaving for their August recess to hold both Attorney General William P. Barr and Commerce Secretary Wilbur Ross in contempt of Congress for not complying with subpoenas related to the administration’s decision to include the citizenship question. The White House has asserted executive privilege over the information.

Over at the Gray Lady-

Federal Judge Blocks Justice Department’s Effort to Withdraw Lawyers on Census Citizenship Case
By Michael Wines and Katie Benner, The New York Times
July 9, 2019

A federal judge in New York on Tuesday rejected the Justice Department’s request to switch its legal team midway through a case challenging the Trump administration’s effort to add a citizenship question to the 2020 census.

The sharply worded order, by United States District Judge Jesse M. Furman, may further hobble an already struggling battle by the administration to save the citizenship question. Efforts to block it have become a crucial political issue as the next census — and the redrawing of political boundaries in 2021 that will use fresh census data — draws near.

On Sunday, the Justice Department said it was replacing the legal team defending the citizenship question. It offered no explanation for the change, which came in the middle of a prolonged clash over whether the administration’s arguments for adding the question could be believed.

But on Tuesday, as a new team of lawyers began to notify the court of its appearance in the case, Judge Furman barred the old lawyers from leaving until they met a legal requirement to satisfactorily explain their departure and show that it would not impede the case. He excepted only two lawyers on the team who had already left the department’s civil division, which was overseeing the lawsuit.

“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” he wrote, adding that their written assurance that the switch would not disrupt the case “is not good enough.”

If the department wishes to continue with the switch of legal teams, the judge wrote, the lawyers must provide sworn affidavits explaining their departures and remain under the court’s jurisdiction should they be required to return.

The American Civil Liberties Union and other plaintiffs led by New York Attorney General Letitia James had asked the judge on Monday to block the Justice Department’s reassignment of the case without providing a reason for the withdrawal. On Tuesday the group said it still had questions about the move.

“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,” said Dale Ho, the A.C.L.U.’s lead attorney on the case. “The Trump administration is acting like it has something to hide, and we won’t rest until we know the truth.”

The Justice Department declined to comment. Mr. Trump took to Twitter late on Tuesday to express his displeasure with Judge Furman’s order.

On its face, Judge Furman’s order only enforces a court rule governing changes of legal counsel. Practically, however, it presents the department with a difficult choice: Either reverse course and leave its old legal team in place, or produce sworn explanations that could prove both embarrassing and damaging to the administration’s case.

The department’s legal campaign had already undergone head-snapping changes in strategy this month. Department lawyers first said they were abandoning the case in the face of a Supreme Court ruling blocking the question, only to reverse course the next day, after President Trump called their statement “fake” and said the case would continue. They then told a federal judge that the administration was exploring a “legally available path” to restoring the question.

But that handed opponents of the citizenship question a legal opening: In a motion in Judge Furman’s court last week, they argued that the government had repeatedly said the lawsuit had to be resolved by June 30, when the printing of the 2020 census forms had to begin. The department’s announcement that it would continue to press for the question in July belied that explanation, opposition lawyers said.

They also suggested that the administration had set a false deadline for resolving the case to keep opponents from uncovering evidence that the citizenship question had been driven by a desire to help the Republican Party gain power when census figures are used to draw new political boundaries in 2021. The challengers said they would pursue sanctions against the defense for its conduct.

The Justice Department announced the switch in legal teams two days later on Sunday. While the department has not explained the change, multiple people familiar with the case have said that the lawyers resigned from the lawsuit out of ethical concerns and a belief that the suit was unwinnable.

Those people have said that many of the lawyers did not see a path forward on the case, given that any argument they made could appear to contradict statements to district judges and to the Supreme Court that the administration had to have a decision by June 30. Just as important, they faced a conflict of interest in trying to represent a client — the President of the United States — who had just publicly branded them liars.

But if those explanations were presented to Judge Furman, they would undermine any future arguments made by the Trump administration as it continues to find a way to put the citizenship question onto the census.

“They are absolutely in a bind,” said Neal Katyal, a partner at Hogan Lovells and the former acting solicitor general. “They can’t answer the question without gutting what Trump and Barr are trying to do. They can try to avoid being forthcoming, which is increasingly the modus operandi of Trump’s Justice Department. But that move will fail in the courts, as today’s decision indicates.”

The census fight has become an embarrassing issue for the Justice Department.

Dead, in the sense of Door Nails, is-

Door nails were long used to strengthen the door. The person building or installing the door would hammer the nail all the way through the boards. On the other side, he would hammer the end flat, bending it so that the nail would be more secure in a process, called “clenching.” In doing so, the nail was rendered unusable for any other purpose. It would be difficult to remove and even more difficult to use again elsewhere. Thus, the bent nail was commonly called “dead” (not just to do with doors, but elsewhere where the nail was bent over and couldn’t be used again.)

It’s kind of an apt metaphor in this case, that what makes them “Dead” is that the Nails can’t be removed and re-used. The arguments filed in the Supreme Court have been ruled on and are now settled Law. They’ll have to come up with something new that doesn’t admit to the perjury they’ve already committed.

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