People who don’t like constitutional crises breathed a sigh of relief last night after Donald Trump dropped his bid to put a citizenship question on the 2020 Census, an effort courts had already rejected. Attorney Joshua Matz advises us to skip the celebration, though. Matz, a prominent Washington lawyer who publishes the legal blog Take Care, had filed an amicus brief in the case when it reached the Supreme Court. He also penned a cutting Twitter thread this week explaining the Census issue, and how the administration’s talk about ignoring court orders represented a crisis in the making. In an interview edited for length and clarity, Matz told Washingtonian about how a week of posturing—though it ended with Trump backing down—still sets a dangerous precedent.
This interview has been edited for length and clarity.
We’ve seen moments of chaos and manufactured drama from this administration frequently. How did the Census case compare?
On a scale of one to ten, measuring the sheer insanity of the administration’s legal arguments and litigation tactics, this registered around 11.
Even though they lost?
Let me think how to describe this. Okay. This past week was not one of the Justice Department’s finest. After the Supreme Court held that the [Trump administration’s] reasons were pretextual—in other words, a lie—the administration at first signaled that it wouldn’t add the question. But then President Trump Tweeted that this was ‘Fake News,’ apparently catching his entire legal team by surprise. When questioned in court, one lawyer openly admitted that he had no idea what was going on. And another [lawyer] shot his client in the foot, by explaining that they had been ordered to set out in search of some new pretext.
So they set up some new form of pretext. The scramble for that pretext was clumsy, careless, and painfully public. Over the course of the week, the president offered multiple reasons that his own lawyers had heatedly denied. At a certain point, it felt like we were dealing with Schrodinger’s Census Question. Nobody was entirely sure whether it was there or not. And whether it would be there if you opened the box tomorrow.
Apparently retaining some shred of professional integrity, the entire [DOJ] team representing Secretary Ross withdrew. [But] parties can’t change lawyers in the middle of a case without regard for what that might do in the ongoing litigation. When the new lawyers sought to parachute in, all three judges hearing the Census cases said that they could not do so without…individualized explanations about why they were jumping ship. They had also repeatedly represented to the courts that [adding the question] cannot be done after June 30. Parties are not allowed to induce courts to rely on their representations—and then to call an audible if they think that it would be convenient to do so.
Bringing in lawyers from other departments would scream to any observer that something terribly strange was going on, in a way that would signal weakness. Because if this administration was confident, including in its new pretext, it wouldn’t need to bring in an entirely new legal team.
And now that that fight is over, Trump can’t tolerate losing. So he needs to make it seem like even having lost, he’s still winning. I think it’s way more chaotic.
On Twitter, you called the DOJ legal strategy “bizarre and exceedingly desperate.”
Yeah, I mean, the administration sought 13 emergency stays from federal courts, and it was denied every single time, except part of one of them. It asked the Supreme Court to [rule] before [lower courts’] judgement, which almost never happens. And it did so on the basis of a factual representation [the June 30th deadline for printing the Census] that it disavowed just days after it lost in the Supreme Court. The commerce secretary all but admitted his previous representations to Congress were a lie, and the Supreme Court issued a decision ruling against it that, for the first time ever, held that an agency action had to be set aside as pretextual.
Virtually every step of this case has presented questions that most law professors would traditionally have thought of as crazy hypotheticals. And in some ways it feels more like a Tom Clancy novel than it does like real litigation brought by the actual Department of Justice.
In some ways it feels more like a Tom Clancy novel than it does like real litigation brought by the actual Department of Justice.
A lot of people have couched the Census saga as a coordinated, malevolent plot. But on Twitter, you’ve tended to describe it as more disorganized, more Kafkaesque than that.
I think you’re attributing to them more competence than they have. There were a lot of people involved in making this decision. It was wasn’t just Trump. Nominally there was the commerce secretary, consulting with [Steve] Bannon and [Kris] Kobach and [Stephen] Miller. God knows who else. They prevailed on Secretary Ross, who does not strike me as a beacon of intellectual competence, to add the question. I don’t know what his reasons were—he didn’t appear all that personally invested in this issue—but he adds the question. Whether those were the reasons they always had, I couldn’t begin to guess.
But if you had to guess? What do you think Bannon and Miller’s rationale for the Census question was?
Clearly it’s true that at least from the beginning one of the reasons to do it was to facilitate the drawing of districts only by reference to citizens. I think another reason was to scare Hispanics, both lawful and non-lawful residents. I think another part of it is just that it’s part of the white nationalist agenda of the Trump administration—to sort of prioritize the concept of citizens as a kind of us-them binary, that we’re entitled to know who’s here, who’s one of us and who’s not. So I think there were a lot of things that went into it.
It’s a favorite observation of historians that the truth about authoritarian regimes is that underneath their tough-talk almost always lies fecklessness. And one of the big debates about Trump is whether his incompetence, in the end, might save us—salvation by the kakistocracy.
I don’t believe that for a second.
That didn’t happen in this case?
This is a case in which the administration’s incompetence—it’s incompetence at lying, mainly—prevented a policy from going into effect that would have made our democracy worse. But as we have already seen in the travel ban case, some judges are willing to accept extraordinarily implausible explanations for administration actions, even where the administration’s incompetence makes it clear that they are acting for legally prohibited reasons.
One thing I’ve written about: The administration has repeatedly engaged in this pattern of ‘animus laundering.’
What’s animus laundering?
You know, the administration issues a policy, like the travel ban, or the transgender military ban, or the ban on federal funds to sanctuary cities, that is obviously illegal. And they’re enjoined by the courts. But rather than give up and acknowledge that they were caught with their hands in the cookie jar, the administration engages in a round of bogus legal review, puts a little lipstick on the pig, and then trots it back into court, insisting that everything now is fine.
Anyway, looking beyond the courts, the administration’s incompetence is not only a bug, but a feature of its efforts to shatter norms about what presidential governance in our democracy should look like. The fact that it was stopped here matters. But it shouldn’t be taken as proof that the administration will be unable to achieve anti-constitutional goals merely because it often pursues them ineffectually.
A lot of people are praising Chief Justice John Roberts for rejecting the administration’s pretext. Do you think he’s the hero of this story?
The hero is not the chief justice. The heroes of this story are the three district court judges—Richard Seeborg, George Hazel, and Jesse Furman—who stood up for the rule of law, and insisted on holding this administration accountable, notwithstanding outraged Tweets from the president, and procedural hijinks that few judges encounter at any point in their career, let alone from the government. They are the ones who ensured that the truth came out.
It’s not easy to be a lonesome district judge, alone in your courtroom, with the President of the United States tweeting against you and inspiring his followers to issues death threats against you, and to stay the course in insisting that the rule of law matters, and applies even to a government willing to disregard it. What they did took a lot of bravery. It really did. And bravery because they did their damn jobs.