TRUMP’S CENSUS FIGHT CONTINUES: A ‘CONTRIVED’ PRETEXT AND A CREDIBILITY CRISIS FOR HIS LAWYERS

[The following post first appeared at Dan Rather’s News & Guts on July 6, 2019]

Trump’s handpicked Solicitor General, Noel Francisco, has a problem. After a New York federal court barred inclusion of a citizenship question on the 2020 census survey, he told the US Supreme Court repeatedly that June 30, 2019, was a firm deadline for printing the survey.

The Court believed him. For the first time in 15 years, it took the extraordinary step of bypassing an intermediate appellate court to expedite consideration of Trump’s case.

On July 3, Trump made Francisco look like a liar. By July 5, he looked even worse.

Why It Matters

The US Constitution requires a census of the entire US population (not just citizens) every 10 years as the basis for allocating the number of seats that each state receives in the US House of Representatives (and electoral votes in presidential elections). Those allocations remain in place for the subsequent decade. The census also determines how the federal government distributes billions in federal funds to states and local communities. The survey goes to 100% of the nation’s households.

Asking survey respondents about their citizenship would discourage some from responding to it at all. For example, including the question in the 2020 census would result in an estimated undercount of 6 million Hispanics — or about 12 percent of the US Hispanic population. According to a recent analysis from Harvard’s Shorenstein Center and The Washington Post, the House impact would benefit Alabama, Minnesota, Ohio, and Montana at the expense of California, Arizona, and Texas. “Similar changes would hit state and local districts across the country when they are redrawn using the same data,” the Post reports.

On March 28, 2017, the Census Bureau (part of the Commerce Department) told Congress that — as in prior years — the 2020 census survey would not include a citizenship question.

Distorting the Process

Then Trump politicized what has always been a non-political exercise. The timeline tells the tale.

Spring 2017: Secretary of Commerce Wilbur Ross discusses with Trump adviser Steve Bannon and Attorney General Jeff Sessions the addition of a citizenship question to the upcoming 2020 census survey. At the time, Jody Hunt is Sessions’ chief of staff. (Special counsel Robert Mueller’s 2019 report cites Hunt and his notes frequently, including Trump’s reaction to Mueller’s appointment in May 2017: “Oh my God, this is terrible. This is the end of my presidency. I’m fucked.”)

May 2: Ross sends an email to Commerce Department officials, stating, “I am mystified why nothing have [sic] been done in response to my months old request that we include the citizenship question. Why not?”

Ross can’t just add the citizenship question himself. He needs a rationale.

Dec. 12: After trying unsuccessfully to get the Justice Department and other federal agencies to seek citizenship information through the 2020 survey, a Justice Department official finally sends such a request to the Census Bureau. The stated justification is to assist in Voting Rights Act enforcement.

Jan. 20, 2018: The Census Bureau’s chief scientist recommends against including the requested citizenship question because it “is very costly” and “harms the quality of the census count.” He notes that the five-year American Community Survey already gathers better citizenship information more efficiently.

Mar. 19: The Trump campaign and the Republican National Committee tell supporters that Trump wants a citizenship question on the census survey.

Mar. 20: Ross appears before a House subcommittee where Rep. Grace Meng (D-NY) asks, “Has the president or anyone in the White House discussed with you or anyone on your team about adding the citizenship question?” Ross answers, “I am not aware of any such.” Two days later, he tells another House committee that the Justice Department “initiated the request” for a citizenship question, omitting the extensive email trail proving otherwise.

Apr. 3, 2018: New York state sues to remove the citizenship question from the survey. Additional lawsuits follow.

Jan. 15, 2019: Trump loses the New York case, and the court bars the citizenship question from the survey.

Final Resolution Required “by the End of June 2019”

Jan. 22, 2019: Solicitor General Francisco asks the Supreme Court to bypass the appeals court and hear the case. Francisco argues that the government must finalize the census questionnaire for printing by the end of June 2019. In subsequent filings, Francisco invokes the June 30 deadline repeatedly.

Feb. 15: The Supreme Court agrees— for the first time since 2004 — to bypass the appeals court and hear the New York case directly.

“Contrived”

June 27: The Supreme Court rules on the appeal. Saying that it expedited the case based on Francisco’s claims that “the census questionnaire needed to be finalized for printing by the end of June 2019,” the Court then doubts Ross’s veracity:

“The evidence tells a story that does not match the explanation that the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency)… [T]he sole stated reason seems to have been contrived.”

July 2: Ross issues this statement: “The Census Bureau has started the process of printing the decennial questionnaires without the question.”

The same day, Justice Department attorneys tell a Maryland federal judge in a separate case the same thing: printing the form without a citizenship question is underway.

The “June 30 Deadline” Evaporates

July 3: Trump tweets that press reports about the citizenship question not appearing on the census form are “FAKE”:

The Maryland judge sees Trump’s tweet and convenes an emergency conference call to find out what’s going on. On the call, Justice Department attorneys scramble: “[T]his is a very fluid situation which we are trying to get our arms around,” the lead DOJ attorney tells the judge. He knew nothing about the government’s new position until Trump’s tweet.

Then his boss, Assistant Attorney General for the Civil Division (and Sessions’ former chief of staff) Jody Hunt, chimes in: “We at the Justice Department 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.”

Sensitive to the urgency of the situation, the court orders the government to report back to him by 2:00 pm on Friday, July 5, on how it intends to proceed. The lead Justice Department attorney asks for a delay: “[G]iven that tomorrow is the Fourth of July and the difficulty of assembling people from all over the place, is it possible that we could do this on Monday?”

Judge: “No… 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. “

July 4: Trump proves the judge’s point. Only Trump speaks for Trump:

July 5: The Justice Department tells the Maryland judge that DOJ and the Commerce Department are still evaluating whether there’s a way to include the citizenship question on the 2020 survey. Among the options under consideration: having Ross articulate yet another rationale for its inclusion. That would start a brand new round of litigation on the issue. Meanwhile, “the Department of Commerce and Census Bureau currently are enjoined from printing a census questionnaire that includes a citizenship question.”

What about the June 30 printing deadline? The government’s July 5 submission conspicuously omits any mention of it.

Trump is punting. Noel Francisco is the ball —and so, perhaps, is the very integrity of the census itself.

Steven J. Harper is a regular contributor to News & Guts and the creator/curator of the Trump-Russia Timeline. He’s an attorney, adjunct professor at Northwestern University Law School, and author of four books, including Crossing Hoffa — A Teamster’s Story (Chicago Tribune “Best Book of the Year”) and The Lawyer Bubble — A Profession in Crisis.He blogs at The Belly of the Beast. Follow him on Twitter (@StevenJHarper1).

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