For a case that has been extraordinarily combative and fiery as the challenge to the census citizenship question, the hearing scheduled for Wednesday afternoon stands to be one for the ages — in terms of how heated things could get.
The Justice Department stands accused of enabling key evidence in the case to remain hidden, by way of allegedly false testimony from a top DOJ official and by an outside advisor to the government on census issues.
The ACLU is seeking that, in addition to sanctioning the two witnesses, the judge reopen discovery to get to the bottom of who knew what about the evidence and to answer the new questions it raises.
The department has accused the ACLU of making “inflammatory” and”meritless” claims as part of an “eleventh-hour campaign to improperly derail the Supreme Court’s resolution of the government’s appeal.”
The ACLU said that the “Justice Department’s hands are not clean” and that the administration’s “misconduct is apparent.”
Altogether, the already remarkable situation Judge Jesse Furman finds himself in with this dispute will likely involve even more barbs and potshots between the parties at the courthouse later Wednesday.
It’s hard to overstate how not typical this current set of circumstances is. The legal system usually moves slowly enough that these disputes get sorted out before a trial, before a judgement and before the case has been appealed — and heard — by the Supreme Court.
But the census case has moved at an expedited pace due to the June deadline facing the administration to print the survey forms. And, while racing through that quick timeline, the Department of Justice played some serious hardball when it came to fighting certain discovery requests — including obtaining a Supreme Court intervention to block a deposition of Commerce Secretary Wilbur Ross, who made the ultimate decision to add the question.
Facing Furman on Wednesday will be a very complicated set of events through which the challengers learned that a now-deceased GOP consultant, who previously expressed political motives for adding a census citizenship question, was involved in writing a draft justification for the question. He’ll also be dealing with an extremely convoluted back and forth between the department and the challengers over whether the evidence was improperly concealed in discovery.
Furman has proved himself to be a very meticulous judge in his handling of the case, but not one to hold back his frustrations in previous instances where the administration appeared to be behaving less than transparently.
Given the length and breadth of the challengers’ new discovery request I am skeptical we will get any ruling on that from the bench — or even a ruling on whether the witnesses should be sanctioned for false testimony. But I’d guess we’ll at least get some indications of what Furman thinks he can and should do in this situation.
Even if he does give the ACLU some or all of what it wants, how that information can be put in front of the Supreme Court as it weighs its decision is not at all clear.
But the dispute has certainly raised the heat around one of the most contentious and high-stakes cases in recent memory. How the justices decide it will likely be an indicator as to whether the court can maintain its legitimacy as a check on an administration that’s been accused of acting deceptively in the judicial process.