States Challenge 2020 Census Citizenship Question

Joining me is Leon Fresco, a partner at Hollandon Knight Leon. What are the plaintiffs arguing in the lawsuit? The planetifs essentially have one simple claim, which is that the constitutional requirement of counting every single person, which is required by the Constitution, is undermined and diminished by the count by

the requirement of a citizenship question. Hey in that the addition of this question violates both the Constitution and the Administrative Procedure Act because the government is intentionally including a question that they know will produce an undercounted census. So is this another case where the argument is that the Trump administration hasn't followed the proper procedures for putting in another question. Correct, there's two are there's two cases. There's

two sorry, there's two claims. One is that they haven't followed the proper procedures because they say that there are many times when a question is added in the census, the tradition is that you have many test samples that you do to see if that question actually hurts participation

in the census. And they say that this new question hasn't been tested, and that, in fact, the position of the federal government since nineteen eighty every time it's been asked is that a citizenship question reduces participation, and so the agency couldn't ship position so quickly and say that this wouldn't decrease the number of people participating without actually

having tested it. And then second, they say that this is just illegal because they because the Constitution requires an actual enumeration of all people in the United States, doing something that that the government knows won't produce an actual enumeration of all people in the United States violates the law. Leon what's the response of the Trump administration been, what's their defense to this? So the Trump administration says two things.

One that prior to nineteen fifty, this question was asked and nobody sued, and nobody thought it was a problem for the Census, And then even since nineteen fifty, not in the census itself, but in the American Community Survey, which is a survey that the Census Bureau does every couple of years and they do it as part of the Department of Commerce, that this question is asked and that this doesn't reduce participation. That's their view. Uh, people

might might disagree about that. And and they also say that this question is needed in order to make decisions about who are how these district works in terms of the Voting Rights Act, so that they can actually try to figure out what are fair districts that aren't discriminatory, and that if you if you only know pure numbers and that numbers of voters, you might not be able

to appropriately make districts that are not discriminatory. Leon is there any evidence it seems likely that immigrants who are are not who are not legally here wouldn't want to go and complete this census for him if this question is asked, but is there any evidence that backs it up? Well, the the the problem is no, it's a lot of a lot of this is speculative and conjecture with the with the one caveat that that is the stated position of the Centers Bureau since nineteen eighty. So there was

a brief that was done by nine UH. There was an amicus brief that was done UH in a different case, not about adding the question itself, but where nine previous directors of the sense of Census Bureau and a bi partisan basis all stated in the brief that it is their belief that adding the citizenship question would decrease participation.

And what the States say in this lawsuit is, even if you didn't think that before, now, with the kinds of policies the Trump administration is putting in, people have more of a reason to be afraid. And so we've never tested this environment of asking a question like this in this environment where imagine if a government census worker is actually coming up to you and asking you this question, can you confuse them potentially if you're an undocumented person

for an ICE agent. And so this is the concern and the fear about adding this question. At this point, there are already moves in Congress to stop this question from being asked and including by two New York representatives. Carolyn Maloney has introduced a bill and Jose Serrano says he's going to offer an amendment to the fiscal im the best spending bill is are any moves in Congress

likely to stop this? Well, if they were to defund so for Mr Serrano's bill, for instance, he's the ranking member on what's called the Commerce, Justice, and Science Appropriations Committee, and so if he actually was successful in defunding the ability to ask that question in the census, then that

question could not be asked in the census. But the question is in all of these kinds of issues, if Democrats on mass vote against something like that and say we won't vote for a spending bill that actually includes this, then what they're doing is theoretically shutting down the government over the census question. And that's where it becomes tops is are they really willing to go to that length in order to get the sense of question not placed

in there? Because that's what your bargaining chip is when you're trying to put it in an appropriations bill. And so that's the question that no one knows. All right, So about a minute here, Leon, how likely is it that a coordinated New Yorker California will at least put

the question on whole while the litigation proceeds. I think it's pretty likely that given that the given that this lawsuit was filed in the Southern District of New York, where there are a lot of judges that are sympathetic to this case, if for no other reason, also because you know, the number of judges ends up getting a portions a lot of times based on the size of the population, etcetera, I think that I think you could see an injunction for for the meantime been saying look,

this wasn't tested, the procedure wasn't done, wasn't done. But I do think, uh, it will be hard to sort of figure out what the irreparable harm will be to move that through the through the court quickly. But the government will certainly argue that it's irreparably harmed by not adding not asking this question, which is kind of hard to prove because seventh decade they haven't asked the question. So if they just get one injunction, it'll be hard

to get it back in the census in time. Okay, thanks as always, Leon, that's Leon Fresco, a partner at hollanden Night. Be careful what you argue when you're dealing with Special Counsel Robert Muller. You may get a two d eighty two page response from Mueller shooting down your argument, as Paul Manafort did. The former Trump campaign chairman argued that prosecutors overstepped their authority by charging him with crimes

beyond Russian meddling in the presidential election. The Special Counsel responded with a detailed memo explaining his power to investigate and charge Manifort, and attaching a secret government memorandum from Acting Attorney General Rod Rosenstein detailing that authority and confirming the oversight Rosenstein testified to before Congress last December. I

know what he's doing. I'm appropriately exercising my oversight responsibilities, and so I can assure you that the Special Council is conducting himself consistently with our understanding about the scope of his investigation. My guest is William Banks, a professor at Syracuse University Law School. Bill, does this memo shut down this part of Manafort's defense strategy? I think it does. June.

You recall earlier Manafort brought a civil action to attempt to quash the lawsuit on the grounds that the investigation was beyond the scope of Mueller's authority. That's going nowhere. And now he's done what he what most criminal defendants would do, which is to challenge the authority for the investigation. But I think even without the new memorandum that you dis referenced in your clip, that the argument was a

long shot. And I think now with the memorandum specifically detailing the kind of questions that Mueller was investigating concerning Manaford, I think it's uh game seven match. I think it's over. There's a footnote in the memo from a section of the Code of Federal Regulations which notes that the Special Council has the authority to investigate federal crimes that interfere with the Special Council's investigation, such as perjury, obstruction of justice,

destruction of evidence, and intimidation of witnesses. They didn't have to put that footnote in. Is it a warning shot Muller's firing, Well, it might be, given the given the record. Even you know, this memo was stated August, so in the months before that, we already had evidence beginning with Mr Flynn, that people in the campaign are central to the Trump organization might not have been completely forthcoming, shall we say, in their interviews with the Independent Council's office.

So I think it is a warning is does this does this memo show how meticulous the Special Counsel is as he gets his authority? While they're highly meticulous, they have been from the beginning. Uh that they don't leak. Mueller does not make public statements. It's it's an extraordinarily efficiently and professionally run organization, and we shouldn't expect anything different,

I think, until its conclusion. The Washington Post reported that Mueller informed President Trump's attorneys last month that he does not consider Trump to be a criminal target in the Russia investigation. Explain the implications of being a criminal target and whether this means Trump is in the clear, Yes, it's a It is an important use of language here. So he's not a target. That means that he's not

subject to indictment. And that is because it's almost certain that a president may not be legally indicted while he's still in office. That's Justice Department policy, and it has been for a long time, and it's highly unlikely that Mr. Mueller would attempt to circumvent or or make a case

against existing Justice Department policy. At the same time, he he indicated that the president is a subject of the investigation instead of a target subject, means that he's still talking to the president, and that the material that the President might provide to Mueller or his team could assist in developing evidence that could be used against others who could become targets or who eventually could include the President

as a potential target down the road. If he wasn't a subject of the investigation, he might be characterized, say as a witness, But he wasn't. He was characterized as

a subject. So that Mueller still believes that the President's got something to say that it's going to be useful to them as they try to get to the bottom of the rusher portion of this investigation, as well as the obstruction possibility involving the president's Hell, I know it's never been done before, but could a president be indicted after he leaves office? Yes, he could, uh, and then he's a citizen like you and me, so he's subject

to indictment at that time. It could happen. But you know the more the more likely remedy is the one that's been exercised a few times in our history. That is impeachment. If there are serious charges that could give grabs. Bill, why do you think Mueller wants an interview with Trump so much? I mean, they keep pressing it. They haven't served as subpoena, right. I think there are two two lines of inquiry that Mr Mueller would very much like

to pursue with the President. One involves the circumstances surrounding the termination of Mr Comey. Did Trump fire call me because of Comey's refusal to say that he was not a target of the of the investigation. The second line of courses his knowledge the President's knowledge about what members of his team campaign related or otherwise UH did or had communications with Russians or others involved outside the United States in attempt to support his candidacy. So, Bill Manafort

has really come under fire from Mueller. He has all these different you know, the the indictments against him, He's got Gates to testify against him. We don't know what else he has. Do you suppose that Mueller is still hoping that that Manafort will flip. I believe he is. That's the way that if you're reading Tea Leaves, I think here every day the screws turn a little tighter

against Mr Manaford. And the almost certain failure of this motion to dismiss the indictment that we talked about earlier, I think it tightens this cruise yet again. And so now uh, Mr Manafort might be looking for a presidential pardon and absent to pardon, I think we might be looking at a at a flip, because otherwise he's in very serious legal jeopardy. Well, we have about forty five

seconds left. You brought up the pardon. What if he does get a pardon from a presidential pardon that wouldn't cover crimes in New York and supposedly the New York um a G is looking into this. Yes, that's correct, and that would be true if others involved in in this entire investigation as well, and some circumstances, there are potential state charges I know I've heard in New York and possibly Pennsylvania for some of the officials under investigation.

That's why we have a federal system. So the federal uh, the federal pardon is only part of the UH concern that each of them would have to focus on all right, Bill, Thanks as always. That's William Banks, a professor at Syracuse University Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg Ye.