WASHINGTON — The Justice Department is swapping out the lawyers who had been representing the administration in its legal battle to put a question about citizenship on the 2020 Census, possibly signaling career attorneys’ legal or ethical concerns over the latest maneuvering ordered by President Trump.
The department announced the move in a statement, which was issued after The Washington Post inquired about whether the career lawyers on the team planned to withdraw.
A person familiar with the matter, who spoke on the condition of anonymity to discuss internal deliberations, said that at least some of the career attorneys harbored concerns about the administration’s handling of the case – though the precise nature of those concerns and how widespread they were could not immediately be learned.
“As will be reflected in filings tomorrow in the census-related cases, the Department of Justice is shifting these matters to a new team of Civil Division lawyers going forward,” Justice Department spokeswoman Kerri Kupec said. “Since these cases began, the lawyers representing the United States in these cases have given countless hours to defending the Commerce Department and have consistently demonstrated the highest professionalism, integrity and skill inside and outside the courtroom. The attorney general appreciates that service, thanks them for their work on these important matters and is confident that the new team will carry on in the same exemplary fashion as the cases progress.”
The shift in lawyers will be reflected in simple withdrawal and appearance notices filed in court, a Justice Department official said. The official said the entire team on the case – both those in political positions and career employees who have served multiple administrations – will be replaced with new political and career lawyers from the department’s Civil Division and Consumer Protection Branch. Several career members of the team declined to comment to The Post. That the department also replaced those in political jobs signals that there could have been other factors in the staffing shift beyond concern from career employees.
The staffing change comes as the department is moving toward what some analysts say is increasingly unsteady legal ground in its bid to add the question, despite a Supreme Court decision that would seem to bar it from doing so.
Less than a week ago, the Departments of Justice and Commerce had effectively conceded defeat, saying they were printing the census without the citizenship question and acknowledging even internally that the Supreme Court had given them no other choice. But the surrender infuriated Trump, who forced the lawyers to do an about-face and come up with ways to keep the fight alive.
Trump said Friday that he was considering an executive order to get the question added – a move pushed by some of his conservative allies, though legal analysts have said it would be unlikely to succeed in court.
The 2020 census is still being printed without a citizenship question. Those opposed to adding it fear it would drive down the count of minorities, which is important because census results are used for allocation of funds and congressional redistricting. The Justice Department sits in an atypical position inside a presidential administration, having a measure of independence for its law enforcement operations while also defending the president’s policy agenda when it is challenged in court. Department lawyers can sometimes be put in a position of arguing that particular policies are legal, even if they would not personally support them.
The census case, though, seems to have become something beyond that. Justice Department lawyers had told those suing to block the citizenship question from being added that the 2020 census would be printed without it, and internally, they thought they had no other options. When Trump tweeted Wednesday that the case was “absolutely moving forward,” some lawyers on it were blindsided.
Appearing later that day before a federal judge in Maryland, Justice Department attorney Joshua Gardner said that he had always “endeavored to be as candid as possible with the court” but that he did not know what was on Trump’s mind.
“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,” Gardner said to the judge, a transcript shows. “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.”
The case is not the first instance of a dramatic shake-up among Justice Department lawyers on a high-profile case in the Trump administration. Last year, a senior career Justice Department official resigned in the wake of the administration’s move to stop defending a key provision of the Affordable Care Act.
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