Bonaparte’s Retreat

Trump retreats on adding citizenship question to 2020 Census

No, Attorney General Houdini couldn’t escape from his predicament.

We’ll hear more in coming days, but for now, I assume the attorneys in the Department of Justice just revolted, and refused to go forward with yet another pretextual reason to insert the citizenship question.

There were a few occasions during my career when I had to tell a client, “Sir (or madam, as the case might be), I am a competent lawyer. But, unfortunately, you, sir (or madam) do not need a good lawyer. What you need is Merlin the Fucking Magician.”

I assume Barr told Trump something along those lines today.


And, Now, a Few Words from the Peanut Gallery


Nineteen House members have written to the Attorney General, urging him draft up a new executive order on the citizenship question. You can read it here. Most or all of them seem to be members of the Freedom Caucus.

The letter does not take issue with the fact that, under Article 1 of the Constitution, the census is supposed to count inhabitants, not just citizens.

It does not dispute the proposition that including a citizenship question would materially detract from that constitutionally mandated goal, by causing an undercount of non-citizens.

The letter does observe that, while their side has a political motivation for wanting the citizenship question, the other side has a political motivation for wanting the question omitted. So NEENER! NEENER! NEENER!

But the letter does not acknowledge that the progressives’ political motivation is consistent with what the constitution mandates—trying to count all the inhabitants—while the wingnuts’ political motivation is to undercount a lot of the inhabitants, thus imperfectly doing what the constitution requires.

Having failed to acknowledge why all political motivations might not be created equal, the letter has no comeback for the argument that the progressives’ motivations should outweigh the wing nuts’ motivations, because our motivations happen to coincide with what the constitution requires.

Yes, if the political shoe were on the other foot, then maybe our respective legal positions would be different. And if my grandmother had wheels, she could ride the railroad tracks.

As argued by a law professor from the University of South Texas, the letter urges the Attorney General and the President to rely on a purported need for citizenship data in order to enforce Section 2 of the Fourteenth Amendment. However, this provision has never been enforced, nor has anyone suggested that the penalty needs to be enforced at present, or in the future.

In effect, the 19 Freedom Caucusers are urging the Attorney General and the President to substitute a new pretextual basis for the one that Justice Roberts has just rejected.

The Freedom Caucus, whose membership is secret, but it is said to have 36 members. If so, at least 17 of them elected not to sign.

I wonder why.

The Smell of Napalm in the Morning

napalm in the morning

In a late breaking development today, reported by the Washington Post at 10:20 PM, Plaintiffs seek to block Justice Department from changing lawyers in census citizenship case. (And, indeed, for those of you who may not be expert in the finer point of American civil procedure, it is true the case that attorneys cannot just willy-nilly withdraw from representation in the middle of a litigation. The judge’s approval is required.)

The article tells us that

The filing comes in response to a request from the Justice Department attorneys on the case to withdraw.

The department had telegraphed the move a day earlier — saying it was replacing the team of career and political employees who had been handling the matter. A person familiar with the matter previously told The Washington Post that at least some of the career attorneys were frustrated with the handling of the case after President Trump ordered the department to explore more options for adding the citizenship question to the 2020 Census after the lawyers, seeing no other possibilities, had conceded defeat.

In asking to withdraw the attorneys from the case, the department argued that it did not expect the move would cause a “disruption.” But those suing said the department should articulate more clear reasons for the attorneys’ attempted withdrawal, arguing that government lawyers had previously made “rapidly shifting representations” to the court.

They also requested the judge “require any attorneys whose representations or conduct is at issue in the pending or forthcoming motions to attend any hearings on these motions or otherwise remain available to the Court and the parties to ensure the full and fair disposition of the pending motions.”

Let’s just savor the phrase: “’rapidly shifting representations’ to the court.”

Don’t you just love the way lawyers use words?

My Lord, It Must Really Suck to be Bill Barr, Right Now

balls in a vice

In the remote event your thirst for more information on this subject remains unsatisfied, this evening Politico posted a thumb sucker explaining Why Trump will likely lose the census citizenship fight. (That is, if his team decides to ask the courts to lift the injunction against the citizenship question—as opposed to just ignoring the injunction and blowing up the Constitution. See prior post.)

The Politico post won’t surprise you, but it does bring into sharp relief the passel of lies that Trump’s new legal team will have to tell—partly, in order to counter the passel of lies that his old legal team fed the courts:

Eleven days after an unfavorable Supreme Court ruling, a new team of Justice Department attorneys must persuade three district court judges that a June 30 printing deadline a previous DOJ legal team insisted had to be met no longer applies — even though, the Commerce Department said last week, the questionnaires are being printed already.

To pass muster with the Supreme Court, the new DOJ team must find a rationale that the high court will rule consistent with regulatory law and also believable — a tough assignment given that the court said in its ruling that the previous rationale was not.

“I think over the next day or two you’ll see what approach we’re taking, and I think it does provide a pathway for getting the question on the Census,” Attorney General William Barr told reporters Monday.

But that effort has been undermined repeatedly by Trump, who last week appeared to concede that his purpose was political. “Number one, you need it for Congress, you need it for Congress, for districting,” he said last week. “You need it for appropriations — where are the funds going? How many people are there? Are they citizens or are they not citizens?” (Districting and appropriations decisions are in fact based on the census’s raw population numbers, not on any citizen count.)

“It just feels like a farce,” said Vanita Gupta, a former head of DOJ’s civil rights division under President Barack Obama …

It does indeed feel like a farce—and with good reason. But, to me, it also feels like something else. It feels like Bill Barr’s gonads are in a vice, and he’s being pushed, inch by inch, to a point where he’ll either lend what remaining prestige he has to an effort to destroy the Constitution, or he will have to resign.

In the past I have urged everyone not only to listen to what Barr says but also to watch what Barr does.

Keep on watching, folks. Just keep on watching.

Can’t Anybody Play This Game?


One of the cases challenging the citizenship question on the census is pending in Maryland federal district court. That’s the case where District Judge Hazel has become exercised about the stuff on the late Republican operative Tom Hofeller’s hard drive. That would be the stuff evidencing a rightwing conspiracy to ask the citizenship question in order to advance the holy cause of redistricting that favors the melanin deprived segment of our population.

You may remember that, last week, after the Supreme Court’s census decision—that was in a different lawsuit raising similar questions—and after Trump’s refusal to accept defeat, Judge Hazel ordered the government lawyers in his case to file a written answer on Friday to the question, Just what in damnation is going on?

The government side met the deadline. They were a little iffy about what might happen from this point on. The key point from their little essay:

The Departments of Justice (DOJ) and Commerce have been asked [by His Imperial Doofusness] to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census. In the event the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decisions of the Supreme Court, the Government will immediately notify this Court so that it can determine whether there is any need for further proceedings or relief. But proceeding to discovery now in connection with a new decision that has not yet been made would be premature. It would also be extremely inefficient. See Fed. R. Civ. P. 1. [For you non-shysters, that’s Rule 1 of the Federal Rules of Civil Procedure.] Whenever any new decision is made, Plaintiffs presumably would seek discovery on that new decision rather than the old one.

Two takeaways, then. First, we—the Department of Justice—still don’t know which end is up. Though, if we ever find out, we’ll tell you, judge.

Second takeaway: you know that really incriminating stuff on the hard drive about protecting white people? Well, that only had to do with the OLD decision to ask the citizenship question. If there is a NEW decision to ask the same question, it’s going to be for a COMPLETELY DIFFERENT REASON. Ain’t gonna have nothin’ to do with no white supremacy! No, siree! Not even for a Noo Yak minute!

On second thought, there’s actually a third takeaway: And by the way, Judge Hazel, if you would like to buy a bridge in Brooklyn, we can make you a really nice offer.

And Now the Scene Changes, from a Courtroom in Maryland, to …

… the White House.

But first, this observation. If we all take off our MAGA hats and our Bernie buttons, we can see that there is a superficially appealing logic in apportioning by citizens rather than by inhabitants. That rationale would be: only citizens can vote, and accordingly it is citizens who are being represented. So apportioning by citizen/voters, not by inhabitants, would give equal power to each citizen/voter’s vote.

Now, you may like that argument or you may not like it. But the key point is that, as I showed yesterday, it’s barred by the language of Article I of the Constitution. The Constitution requires that the Census count the inhabitants, not the citizens, and that apportionment of the House must be by inhabitants, not just citizens.

But no one told The Donald about this constitutional imperative. See Trump May Have Revealed The Real Reason For Census Citizenship Question: The president’s comment that the question is needed for “districting” could undermine his administration’s effort to add it to the 2020 census.

So the first reason he gives for a possible new executive order is the alleged need for citizenship information in order to apportion the House of Representatives, in violation of the Constitution.