Background
At the 11th hour (as these things go) the Trump Administration tried to add a question to the 2020 census asking if the respondent was an American citizen. The law mandates certain processes and deadlines for Congressional notice that must be met to add questions to the census. Those procedures and deadlines were not met.
So the Trump Administration declared a state of emergency (yet again) to add a question to the census that had not appeared in many decades and which the Administration only started to seek to add over a year into the Administration. Various entities and states sued to block the question. Lower level court decisions found the Administration did not have a basis for the emergency, and that in fact, the record proved Administration essentially lied as to the stated reasons for wanting to add the question.
The Administration appealed to the United States Supreme Court and had its day in that court. In that appeal the Administration repeatedly represented to the court that the court must resolve the matter no latter than June 30th, the absolute latest day for the census forms to be final for printing purpose. On June 27th the Supreme Court denied the Trump Administration’s request to reverse the injunctions against including the question. Trump had his day at the court, and lost. Though the court allowed room for reconsideration of the question, remanding it to lower courts to decide after more discovery, the supposed absolute deadline of June 30th was passed.
The Trump Administration Advises The Courts That It Is Giving Up
On Tuesday, July 2d, the matter seemed completely resolved as attorneys for the Department of Justice emailed Plaintiffs in the case stating they were dropping the matter and the question would not be included. Here’s a picture of that email.
Later that day, in a telephonic status conference, DOJ lawyer Joshua Gardner told Judge Hazel that the matter was resolved and that the question would not be on census. Secretary of Commerce Wilbur Ross, while stating he disagreed with the Supreme Court’s decision, reluctantly confirmed that they would respect it and not include the citizenship question. The news media, of course reported this, because that’s what they do.
And Then Trump Tweeted
That was Tuesday. It took only to Wednesday morning for Trump to reduce his own DOJ and cabinet level secretary to a pack of liars. To be sure, Trump did not own his reversal of what the DOJ told the judge, he just claimed it was all fake news, falsely blaming the media (again) for lying to the American people.
Setting aside the gas lighting (again) of the American public, setting aside that Trump again called legitimate and accurate reporting “fake news,” Trump has also reactivated an issue the courts involved thought had been rendered moot by Defendants giving up.
So what do you do if you are the plaintiffs? You request an immediate status conference to find out what is going on and defendants are really doing. The judge granted that request.
The emergency status conference (done by phone) started at 3:30 the same afternoon, Wednesday, July 3rd and is pure gold in showing an administration in chaos.
How The Status Conference Went
You can review a transcript of the status conference HERE.
The judge comes right out saying that the government attorney told him one thing yesterday and President tweeted the opposite today.
THE COURT: So I guess the reason I wanted to have this call, obviously, we had our call — I guess it was yesterday; feels like a while ago, but I think it was yesterday — and then this morning I saw a tweet that got my attention. I don’t know how many federal judges have Twitter accounts, but I happen to be one of them, and I follow the President, and so I saw a tweet that directly contradicted the position that Mr. Gardner had shared with me yesterday.
To which an apologetic Mr. Gardner embarrassingly admits he had no clue as to what is going on or what the government position (that he represents) now is.
MR. GARDNER: Your Honor, this is Mr. Gardner. I want to back up just a step and say that I’ve been with the United States Department of Justice for 16 years, through multiple Administrations, and I’ve always endeavored to be as candid as possible with the Court. What I told the Court yesterday was absolutely my best understanding of the state of affairs and, apparently, also the Commerce Department’s state of affairs, because you probably saw Secretary Ross issued a statement very similar to what I told the Court.
The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor. I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.
Anybody seriously want to argue this is the right way to run a government? Gardner went on to state he confirmed that as of this moment the forms are being printed without the question.
The Plaintiffs then argue that Defendants be required to state their position and stop making statements inconsistent with it. The judge asks whether their request applies even to the President. Counsel for Plaintiffs at least suggest it should.
MS. HULETT: The President’s tweet has some of the same effects that the addition of the question would in the first place and some of the same effects on the 18 month battle that was just waged over the citizenship question. It leaves the immigrant communities to believe that the Government is still after information that could endanger them.
The judge indicates he probably can’t go that far, though he has concerns.
THE COURT: I assume, although maybe I’m wrong about this, that the parties aren’t suggesting I can enjoin the President of the United States from tweeting things. Maybe you are suggesting that. But I will say my initial reaction to that is to have some concern.
The judge then suggests he could consider an order that the Commerce Department “take whatever steps are necessary to counteract any such message” while admitting “this is an odd place for the judiciary to be.”
The government attorney when asked about that idea really doesn’t address it, instead arguing that the injunction against the question remain in effect. He again admits that he just doesn’t know what the Hell is going on.
MR. GARDNER: I recognize this is a fluid situation and perhaps that might change, but we’re just not there yet, and I can’t possibly predict at this juncture what exactly is going to happen. I think the process by which we have been sort of operating for the past week, while it may be inconvenient for the Court, and I apologize about that, is to maintain consistent contact so we can keep updating the Court and the parties as to the state of affairs.
The court responds by giving the government until 2 pm Friday, July 5th, to get its act together. By then the government must file either a stipulation the question will not be on census, or a scheduling order with how to proceed within a deadline of 45 days, even though the government has squandered a week of that time.
The government then pleads the holiday, requesting more time. The following exchange occurs:
MR. GARDNER: Your Honor, this is Mr. Gardner. The one thing I would request is, given that tomorrow is the Fourth of July and the difficulty in assembling people from all over the place, is it possible that we could do this on Monday?
THE COURT: No.
Boom, this is what happens when you piss off a judge. The judge explains that timing is an issue as the court is under a 45 day deadline from the 4th Circuit and the government’s actions have squandered a week. The judge then makes the following metaphor, which may be my favorite moment in the hearing, suggesting that if it were anyone else he would compel the President to appear.
THE COURT: If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from Mark Zuckerberg telling me something else, I would be demanding that Mark Zuckerberg appear in court with you the next time because I would be saying I don’t think you speak for your client anymore.
At this point, my next favorite moment occurs as one of the Plaintiffs attorneys asks what is going to be done about the government lying to the Supreme Court.
MR. DUKE: Your Honor, this is Ben Duke for the Kravitz plaintiffs. Could we ask what happened to the Government’s repeated representations, including to the United States Supreme Court, which the Supreme Court relied on, that June 30th was an absolute deadline and that they needed to have this finalized and to move forward as of that date? Because what we’ve now heard from the defendants is that that wasn’t true, that they now think that they can even dither over the July 4th weekend and ask for more time to examine this and possibly make a further motion to the Supreme Court for instructions on how to eventually undercut what the Supreme Court has already decided. It is completely inconsistent with the positions that they’ve been taking.
THE COURT: I understand that. I suspect we’re not going to get a useful answer to that question, so I’m not sure that I really want to wade into that at this juncture.
In taking that approach the judge actually protected the government from itself, but unless the Administration does drop the citizenship question on Friday, they will eventually have to answer it. Suffice it say the government attorneys will not be spending the July 4th holiday as they intended.
Elect a clown, expect a circus.
