Late last month, the Supreme Court determined that the Trump administration lied about its real reason for wanting to add a question to the 2020 census form asking if each respondent is a U.S. citizen.
Less than two weeks later, as a team of lawyers led by the ACLU laid out in a remarkable brief filed in a federal district court, Trump’s Justice Department is entangled in an entirely different web of deceit. The brief, moreover, references a forthcoming motion for sanctions against the government attorneys who litigated this case.
There is a lesson here for officials throughout the government. If you play ball with Donald Trump, you’re likely to get smacked with a fastball right across your temple.
Census Bureau officials warned Secretary Wilbur Ross not to add the question because it was “likely to lead to a 5.1% differential decrease in self-response rates among noncitizen households.” However, as a leading Republican gerrymanderer revealed in files discovered after his death, the question would allow congressional seats to be allocated in a way that “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.”
Rather than disclose its real reason for adding the question to the census form, however, the Trump administration implausibly claimed that it added the question to aid Voting Rights Act enforcement. That rationale, according to the Supreme Court’s opinion in Department of Commerce v. New York, “seems to have been contrived.”
While the New York case was making its way through the courts, the Justice Department repeatedly made another claim that turns out to be false (or, at the very least, that the Trump administration itself now claims to be false). The ACLU brief filed on Friday lists twelve separate occasions where Trump administration lawyers claimed that “the census forms must be finalized for printing by the end of June 2019.”
Because of this claim by Trump’s Justice Department, courts processed this case on an unusually expedited basis. Among other things, the Supreme Court invoked a rarely used procedure that bypassed review by a federal appeals court and allowed the nation’s highest court to review a trial court’s decision directly.
Not long after the Trump administration lost in the Supreme Court, however, it started singing a different tune. Though Justice Department lawyers initially signaled that they were giving up the fight to defend the citizenship question, they were later contradicted by President Trump himself. On July 3, they told a federal judge that they’ve 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.”
The problem with this instruction should be obvious, however. July 3 is after the June deadline announced by the Trump administration itself. That means one of three things. Either the Justice Department lied when it claimed that there was a June deadline, or it is lying now, or it didn’t bother to do its due diligence to determine whether its own statements about a June deadline were false.
The primary thrust of the ACLU’s brief is that it invokes a doctrine known as “judicial estoppel” to argue that the Trump administration should be held to its previous claims about a June deadline. “Estoppel” doctrines prevent parties from making one claim, then contradicting themselves when that claim proves disadvantageous.
Yet the brief also makes several references to a forthcoming motion for sanctions. “It is now apparent that Defendants, for tactical advantage, pressed an expedited schedule while engaging in dilatory and obstructionist discovery tactics to conceal damning evidence that the purpose of adding the citizenship question was not to promote voting rights, but to harm Latino communities,” the brief states in its fullest preview of the forthcoming motion. At another point, it notes that if an “ordinary litigant” engaged in the conduct DOJ engaged in here, “sanctions would be the minimum relief provided.”
“Defendants are no ordinary litigants,” the brief continues. “They are agencies of the United States Government represented by the United States Department of Justice. The public interest demands that they act with the utmost integrity and be held to the highest of standards.”
Ultimately, the fate of any sanctions against these lawyers — and of the citizenship question itself — is likely to be decided by Chief Justice John Roberts. Though the conservative Chief rejected one particular Trump administration lie, much of his New York opinion appeared sympathetic to the idea of a citizenship question. There is no guarantee that he will continue to police the Trump administration’s deceit, no matter how grave their falsehoods may be.
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