Three Courts Debate Census Citizenship Question

and Maryland. Speaking to the House Oversight Committee in May, Congresswoman Eleanor Holmes Norton voiced her concerns about the question. You do not believe, in your expert opinion, that asking this a question, even after Mr Levitt's testimony, will have any effects upon the willingness of people to answer questions. You think that there is no danger here. Joining me

is Kimberly Strawbridge Robinson, Supreme Court reporter for Bloomberg Law. Kimberly, why does the Trump administration say this question should be added and what is the challenger's response? Well, the citizenship question is a question that has appeared on the census before UH several decades ago, and it has since been taken off Now, the way that this citizenship question got

added on this time is somewhat of a mystery. The Department of Commerce, which is responsible for the Census, says that the Department of Justice actually reached out to it UH to ask that the citizenship question be added to the census in order to give the Department of Justice more information to successfully enforce the Voting Rights Act, which

is a landmark act protecting minority voting rights. Now, this question is currently asked on a different survey sent out by the Census Bureau, but the Department of UH Justice says that it needs even more responses UH and that it should go on the Census, which is sent to

every American household. Now, during these cases, there's been some evidence that it was actually the Commerce Department that reached out to the d o J. And one of the judges in these cases out of New York said that the citizenship question was really a problem in search or

a solution in search of a problem. And you know, opponents of the citizenship question really point to that latter timeline as evidence that you know, the v r A excuse is really just a pretext for the Trump administration UH to be able to UH depressed response rates among immigrant communities, and they stressed that it's not only UH supposed to depress depress response rates from individuals who entered the country illegally, but even U s citizens who may

live in household with individuals who entered the country illegally. Did any of the courts consider any of President Trump's statements regarding immigration, Well, they did tangentially so at this point of the litigation, and the question is whether or not the Trump administration can even be challenged on these kinds of decisions, or whether or not it's UH completely something that's left up to the political branches UH separate

from the judiciary. And so in reviewing whether or not these claims can be made and whether or not the plaintiffs have brought forth enough evidence to go forward, the courts have focused on whether or not response rates will actually be depressed, and at least one of the federal judges noted that the current political climate certainly suggests that individuals may be afraid, given some of then candidate Trump statements and the Trump administration's immigration position. So it's there

are separate cases. Is there any similarity in the legal arguments of the challengers. Are they basing it on the same considerations? Well, there are really there are a few different legal challenges that are brought in these cases. All of them include uh statutory claims um that relate to a statue that effectively cabins the way that the executive can change the federal law. But they also make some

larger constitutional claims that vary slightly. But all of the cases, all six of them, are all seeking the same result, and that is an order prohibiting the Trump administration from putting this question onsus. So now timing is essential here because questions need to be finalized before the spring of Will the courts be able to resolve these issues by then? Well, the courts do know that they're operating on quite a

tight timeline. And that's because even though the census questions won't go out until, of course, they have to be published and they have to be printed and then actually sent out. UM. So there's somewhat of a moving target for these cases. Right now, they're on track to be uh to go at least one of them to go to trial in January. And that's really kind of the limit of where uh the opponents who are challenging this question.

Think that the trial courts uh need to finish up in order to allow for enough time for appeals to follow. In time for appeals, this could be appealed to the Supreme Court. Well, that's right, And these are the kinds of cases, UH, kinds of really consequential cases that the justices do like to um intervene on, especially if the courts in these cases come to different results. So Kimberly,

what kind of evidence is likely to be presented at trial? Well, they're likely going to be looking at whether or not the citizenship question will in effect lower response rates. And I think one of the key pieces of information for the opponents is actually going to be the Commerce Department's own findings that citizenship question would depress UH response rates dramatically.

And another you know, piece that they're going to be looking at, is really the purpose of adding the citizenship question. Is the v R a defense something that is true or is it just a pretext to harm President Trump's

political opponents? So then what will the government present if their own experts are going to testify on behalf of the challengers, Well, the experts likely the government will present experts UM that support their timeline that it was the Commerce or the Department of Justice that reached out to the Commerce Department, and that there's a good reason for doing this, and that is of course enforcing voting rights um.

And they'll be pressing on the increased information that they'll get by adding this information, Toss and well, will Will Burross take the stand that you think, well, this is really uh, it's brought against the Secretary in his um capacity as uh, you know, an official, but likely he has had very little to do with the actual question. It's more likely we'll see individuals from the Census Bureau who will be presented in these cases. You sound really

like senating cases, more fascinating than I initially thought. Thanks so much, Kimberly. That's Kimberly Strawbridge Robinson, Supreme Court reporter for Bloomberg Law. Also remember that the Census is tied to not only how many representatives there are in the House of Representatives for states, but also allocates more than

six hundred seventy five billion dollars in federal funding. President Trump has shown support for former campaign chairman Paul Manaford, who was found guilty on eight counts of bank and tax fraud last week in tweets and speaking with Fox News last week, I have great respect for what he's done in terms of what he's gone through some of the charges say threw against him. Every consultant, every lobbyist in Washington probably does. But despite the President's support, Manafort's

legal woes seemed to be snowballing. He faces a second trial starting in Washington, d C. Next month on money laundering and obstruction of justice charges, and a potential third trial in Virginia. Joining me is former federal prosecutor Robert Mints, a partner Macarter in English. So, Bob Manafort was convicted last week on eight counts of tax and bank fraud,

but the jury hung on ten other counts. The prosecutors are going to tell us today, are going to tell man of for more importantly, whether they're going to pursue a retrial. What are the chances they'll retry him? Well, I think typically they would not, because the charges that he was convicted of already carry substantial jail time, and so it might not be worth the government's time to

investage resources in the retrial. But in this case, I could see prosecutors at this point telling Judge ellis that they do intend at this point in time to retry those ten charges. We do know from speaking with yourors after the trial that there was a loan holdout, so it was only there were only one vote away from

getting conviction, then those ten other accounts. And as a practical matter, what prosecutors can do is allowed the case in Washington, d C. To proceed, see how that goes, and then ultimately they can always make the decision not to go forward with this third trial if they decide that that's the right thing for them to do. Man of Forts lawyers reportedly, we're talking about a plea deal

with prosecutors while the Virginia jury was deliberating. That's stalled over issues reportedly, according to The Wall Street Journal, raised by the prosecutors. So it's obvious why he would want a plea deal. But why would Muller be inclined to give him a deal when he has him, you might say over a barrel. Well, there'd be two reasons. One is simply to gain the certainty of a conviction in d C. Although that seems like a strong case, and the jury pool in the District of Columbia is likely

to be more favorable to the government. The jury pool in the Eastern District of Virginia will typically draw on more Republican voters, and we know that there were a number of supporters of the president that we're on that jury panel. So I think prosecutors are probably feeling pretty good about their chances of a conviction in Washington, d c. But if they can get that conviction by way of a plea, they still may be interested in doing it.

And then, of course there's always a possibility of Manafort agreeing to cooperate, which is really what prosecutors are looking for here. On the more pressure that they apply to him, the more likely that becomes as a possibility. So cooperation would be an essential part of any plea. Uh it could. I think they would be willing to take a plea without cooperation, but they're much likely much more likely to give him less favorable terms. If all he's looking for

is a straight up plea without cooperation. With cooperation, he's going to get a sanction of the same terms. But then of course there's the opportunity for the judge to move to reduce that sentence based upon his cooperation. So Mr Manaford has a lot his plate right now, a lot of difficult decisions to be made. But if he is going to strike a deal, and he is going and he is going to consider cooperating, now it's really the time to do it. He's really got to probably

make that decision before this Washington trial gets underway. So, Bob, if you were his defense attorney, how would you tell him to factor in the possibility of a pardon from Trump. Well, that's a very interesting question, and it's very difficult to come up with some kind of number and give your clients some kind of comfort as to whether or not that's going to happen. The President has obviously made a number of statements about that possibility. He has reportedly discussed

that internally with his lawyers. Um. But whether or not the political blowback will be so substantial that he ultimately decides not to do that, We'll just have to wait and see. And I think one thing the President is doing also is perhaps waiting to see where Manifort goes with this. His Manafort continues to stand Paul, as the President put it in, continue to fight these charges and not cut a deal. He may wait and let let

this play out. Let's see if he gets convicted in Washington as his trial goes forward, and then make a decision at some point in the future. Let's talk about that upcoming trial and DC charges of conspiring to launder money, obstruct justice, and acting as an unregistered foreign lobbyist. But a very different judge, Judge Amy Berman Jackson, how issued different from Judge Ellis, who had There was a lot of criticism of Judge Ellis for his comments during the

trial and his rulings against the prosecution. Well, I think what we can say June is that Judge Ellis, through his comments during the course of the trial and in particular during the course of motions that were argued in the case before the trial and underway, showed some sympathy towards Mr Manafort, and some antipathy to the government's case and to the government's handling of the trial as the case proceeded. So far, Judge Berman Jackson has shown no

particular sympathy towards Mr Manafort. She's known as a very straightforward, plate down the middle kind of judge. She's not going to tolerate any nonsense, uh, and I think she is going to probably inject herself and her personality and her personal style into the trial, less than we saw with Judge Ellis in the case in the Eastern District of Virginia.

She's also the judge who sent Manafort to jail pre trial during and so at this point they're talking about questions the jury can be asked, and the prosecutors want to be able to ask or to have the judge ask about whether jurors voted in the election, whether they had any opinions of Trump or others associated with his campaign for president. Is the judge likely to allow those

specific kinds of questions. Well, it's interesting they have the same type of back and forth in advance of the trial before Judge Ellis, and in that case, Judge Ellis made clear that he was not going to go down that road. He was not going to inject politics into this trial, even through a backdoor questioning of jurors. And I would suspect that Judge Berman Jackson will agree with

that strategy. The problem was getting into questions about whether people voted in whether they have any particular feelings about the president and about his associates, is that it injects a level of politics into the trial that I think the judge is going to try to avoid, so I think they're going to say listen. Would be interesting for both sides, the defense and the prostitution to know the answers to these questions, but I think it's best if nobody knows and we will find out after the trial,

as we did in the Virginia case. Thanks so much, Bob. That's Robert Mans. He's a partner at McCarter in English. Thanks 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 m