Ideas

A Hearing in the Census Case Turns Surreal

Government lawyers faced an irate federal judge on Wednesday, after the president publicly contradicted what they had told the court.

By David A. Graham
President Donald Trump and Commerce Secretary Wilbur Ross (Leah Millis / Reuters)

About the author: David A. Graham is a staff writer at The Atlantic.

There’s a three-year-old tweet from Donald Trump that I think about a lot. I’ve forgotten the context in which he made the statement, but the idea remains straightforward:

As became clear Wednesday, it’s still true, subbing administration in for campaign.

Last week, the Supreme Court ruled against the Trump administration’s attempt to ask respondents about citizenship in the 2020 census, concluding that while it wasn’t forbidden to do so, the administration had misrepresented its reason for wanting to ask, in violation of federal law. That left the door slightly ajar for further attempts, and the president thundered about the decision and mused publicly about whether he could delay the census.

Garrett Epps: Is the citizenship question dead?

But on Tuesday, government lawyers told plaintiffs and a federal judge that they would drop the matter, because the deadline to begin printing the census had arrived. The Justice Department said the same to reporters, and Commerce Secretary Wilbur Ross, who oversees the census, issued a statement confirming it. It seemed like the matter was resolved, though final written notice hadn’t been delivered to the court yet.

Then Trump went on Twitter and shattered that impression:

Federal district-court Judge George Hazel convened a call with attorneys Wednesday, trying to understand what was happening. “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,” Hazel said, referring to the Justice Department lawyer Joshua Gardner.

In short, Hazel wanted to know whether the federal government was still trying to get the question on the census, as Trump had said, or not, as Gardner had said. The question was simple, but the answer turned out not to be. (The transcript is short, and worth reading in full.)

Gardner, feeling the heat, immediately adopted the storied attorney’s technique known as CYA. “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,” he said, adding that what he had said on Tuesday was his “best understanding” of the state of affairs, and noted that Ross had said the same. He said Trump’s tweet was his first intimation of any change: “I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted.” Gardner said he had confirmed that the Census Bureau was in fact still printing the questionnaire without the citizenship question.

But then Joseph Hunt, the assistant attorney general for DOJ’s civil division, jumped in with a contradictory message: “We at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow us to include the citizenship question on the census. We think there may be a legally available path under the Supreme Court’s decision. We’re examining that, looking at near-term options to see whether that’s viable and possible.”

Here was Trump’s tweet, vividly illustrated. Any litigation involving the federal government is based on the notion that the executive branch represents the presidency. But Trump refuses to coordinate his messages with anyone else, meaning the system breaks down. Only Trump speaks for Trump; neither his Cabinet officials nor his attorneys can reliably say what he intends to do.

Hazel basically told the government lawyers that while he might not doubt their personal honesty, he didn’t have any reason to trust their statements, either:

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.

If Ross were still capable of shame—which he doesn’t appear to be—all of this would be humiliating for him, though Trump has repeatedly undercut Cabinet officials and other appointees by publicly contradicting them before. It must be even more horrifying for career officials like Gardner, who have to work with federal judges regularly and value their reputations.

Angering federal judges is not an especially clever way to argue cases, as any of those attorneys might tell Trump, were he willing to listen. Hazel was courteous toward Gardner, apparently sensing his dilemma, but he was not taking any guff. He moved up a deadline for written notification to Friday, and when Gardner asked for an extension to Monday, citing the Fourth of July holiday, Hazel immediately rejected that.

“Timing is an issue, and we’ve lost a week at this point. And this isn’t anything against anybody on this call. I’ve been told different things, and it’s becoming increasingly frustrating,” he said. “So Friday, 2 p.m., we’re going forward or we’re resolving it. That’s where we are.”

Incredibly, Trump might yet get away with using a citizenship question on the census to suppress participation. For one thing, the plaintiffs’ lawyers complained on the call that the president’s tweets achieved the same effect that they allege the citizenship question would: “It leaves the immigrant communities to believe that the government is still after information that could endanger them,” one said. (Hazel wryly noted that he couldn’t very well enjoin Trump from tweeting.)

Thomas Wolf and Brianna Cea: How the Supreme Court messed up the census case

For another, the Supreme Court rejected the method by which the Trump administration tried to instate the citizenship question, but not the idea itself. It remains possible that the government will rush a new appeal through the courts, get a favorable ruling from sympathetic conservative justices, and then try to get new questionnaires printed on a tight deadline. (This sets aside more bizarre—though not necessarily less likely—options, like some sort of executive order or simply defying the courts, as one congressman suggested Wednesday.)

If Trump does manage to get the citizenship question in the end, it will prove that dishonesty pays. Ross misled Congress about the genesis of the citizenship question, claiming that the Justice Department had requested it—when in fact, he had asked DOJ to request it. The government lied about the same matter in the court cases. Newly discovered documents suggest that DOJ lied when producing the request that Ross requested. Given its willingness to continue the fight, it seems possible that the government misrepresented the actual drop-dead deadline for printing the questionnaire. And the government lawyers misled the judge on Tuesday, though apparently through no fault of their own.

The decennial census is a massive logistical challenge, requiring the federal government to hire half a million people in an attempt to count every person in the United States. Pulling that off, though, might be easier than getting an honest and reliable answer out of the Trump administration.