Once again, I nominate Pres. Trump for the award as the worst client in America. His administration has pursued a weak, almost frivolous appeal regarding the citizenship question on the 2020 census. Finally, just last week, the U.S. Supreme Court said the reason advanced by the Administration for the citizenship question was “contrived.” That is a big deal, since the entire challenge to the citizenship question turns on whether the administration followed required procedures in adding the citizenship question. The entire lawsuit turns on how the Commerce department arrived at that citizenship question. So, when the U.S. Supreme Court finds the question to have been “contrived,” then your credibility, as a party to the lawsuit, is shot. You as a party litigant party have been found to have lied.
Earlier this week the parties to the lawsuit had a conference with the judge. The Department of Justice told the judge that DOJ was done with what was a weak lawsuit. Doubtless all the attorneys and the judge knew it was a weak lawsuit. But, being professionals, they probably said nothing about the quality of the Administration’s defense.
Then, at this meeting on Tuesday, July 2, the parties were likely wrapping things up. DOJ said it was done. The Judge accepted the DOJ assurance at face value, thinking the lawyer was speaking for his client.
So, we can imagine the judge’s surprise the next day when Pres. Trump tweets that DOJ is not done. He will direct DOJ to find a way to get the citizenship question on the 2020 census.
What had happened was that conservative radio host Hugh Hewitt had tweeted that if DOJ was folding its tent on the issue, then that was the worst defeat the Trump Administration had sustained. Soon after Hewitt’s tweet, Pres. Trump tweeted his assurance that DOJ was not done.
Well, Judge George Hazel, the Maryland judge who was overseeing the lawsuit, tweets. He follows the President’s twitter account. He saw the tweet just one day after being assured DOJ was done with its opposition. He immediately called the DOJ lawyer, Joshua Gardner, away on vacation, and insisted he participate in a telephone hearing that day regarding what the Administration is doing. See CNN news report.
The judge held a telephone hearing on July 3 regarding the President’s tweet. The plaintiffs want the parties and the judge to enter an order which states specifically the government will not include a citizenship question on the 2020 census. The judge did not accuse the DOJ lawyers of mis-leading him, but that was the under-current. See transcript here of the telephone hearing.
As Mr. Gardner, the DOJ attorney, explained, this is a very “fluid” situation – meaning he does not know what the President is saying or why he is saying it. Judge Hazel ordered a hearing on July 5, at which time the government must either agree to an order saying it would not include a citizenship question, or re-start the lawsuit to see to what extent the plaintiffs have been harmed by the government’s actions. This being the July 4 weekend, the DOJ lawyers asked if they could hold the hearing on Monday. The judge responded, “no.” The time was slipping away, already, he noted.
In an ordinary lawsuit, the judge would insist the client attend the next hearing, so the judge can be sure the lawyer is speaking for his client. In this case, the two DOJ lawyers were able to assure the judge they were as surmised as Judge Hazel was by Pres. Trump’s tweet. Otherwise, in an ordinary case, most judges would insist the client attend the next hearing.
And, as the hearing closed on July 3, one of the plaintiff lawyers pointed out to the judge that the Administration had been saying for months that June 30, 2019 was a hard and fast deadline. Given the President’s tweet, that appears to not be true. Of course, the judge could not disagree. He could only acknowledge the obvious.
So, yes, a President who cannot harness his team to pull in the same direction and cannot restrain his tweets long enough for his lawyer to enjoy a day off is a poor client indeed.