michael barbaro

From The New York Times, I’m Michael Barbaro. This is “The Daily.” Today: Federal courts keep rejecting President Trump’s attempts to ask about citizenship on the 2020 census. Why no matter what the courts decide, the president may already have achieved his goal. It’s Thursday, July 11.

archived recording 1 The latest battle between Democrats and the Trump administration is over a question: Are you a United States citizen? The Commerce Department on Monday announced the upcoming 2020 census will include that question for the first time since 1950. archived recording 2 Citizenship question, no. Citizenship for immigrants, yes. archived recording 3 Critics are saying it’s basically the perfect way for the Trump administration to target immigrants and perhaps then lead to less resources in immigrant communities. archived recording 4 What do we want? A complete count! When do we want it? Now! archived recording 5 The Justice Department says the data is needed to help enforce the Voting Rights Act. archived recording 6 The New York Times reports at least 12 states plan to sue the Trump administration to block it from asking a citizenship question in the 2020 census. archived recording 7 (IN SPANISH) Sí, se puede! archived recording 8 And we start with that breaking news from the Supreme Court — just moments ago, the high court ruling against the Trump administration’s bid to add a citizenship question to the 2020 census. archived recording 9 Despite the Trump administration’s attempt to politicize the census and divide our nation, we, the people, prevailed.

michael barbaro

So Adam Liptak, the last time we talked to you, you told us that you thought it was pretty likely that the Supreme Court would allow the Trump administration to add a question about citizenship to the census.

adam liptak

Yeah, I was quite confident the five conservatives in the majority of the Supreme Court would allow the Trump administration to add this question, which, of course, everybody agrees would suppress participation in the census, discourage both legal and unauthorized immigrants from answering. And when I came out of that argument, I felt pretty confident about that, and that’s what I told you, and I turned out to be wrong.

michael barbaro

It happens.

adam liptak

You don’t like it to happen, but this time there’s a pretty plausible explanation of what happened after the argument that may have influenced the justices, or at least one of them.

michael barbaro

And what was that?

adam liptak

So on May 30, about a month after the argument, about a month before the decision, there’s a revelation, reported on by my colleague Michael Wines, that lawyers for the challengers had gotten hold of some very interesting documents, and the way they got hold of them was kind of interesting too. A master Republican strategist, Thomas Hofeller, had died. And his estranged daughter, going through his materials and his computers and his hard drive, discovers these very interesting documents, contacts lawyers for the challengers, and all of a sudden, here they are on the court record. Those documents seem to show that there’s at least reason to think that the administration was offering a false reason for adding the citizenship question to the census. It’s always been a little puzzling why the Trump administration has said what it wanted to do. Its reason for adding the question was that it wanted to better enforce the Voting Rights Act and more fully protect minority voters. That’s not something you closely associate with the Trump administration, so there was always a questionable idea, and these documents seem to give us the real reason. The real reason, according to this strategist, was that if you collect citizenship data, you can allow states to draw voting districts in a way different from how they’re currently drawn. Currently, you draw voting districts to have equal numbers of people in a district, and those people can be eligible to vote or they cannot be eligible to vote. They can be children. They can be prisoners. They can be unauthorized immigrants. But one person, one vote, under this conception, which is universally used today, is drawn based on equal numbers of people in voting districts. The alternative idea, though, is to draw districts based only on eligible voters, and that would exclude unauthorized immigrants. But you’d need data to do that, and this data would get you there. And if that were to happen, that would almost always, across the country, benefit Republicans, because urban places with lots of immigrants — some of them on green cards, some of them wholly unauthorized — would drop in voting power. So this would be a big move for Republicans, and this strategist himself said that the effect would be to help Republicans and non-Hispanic whites.

michael barbaro

Got it. So drawing districts based on just eligible voters, which is this strategist’s ultimate goal, allows you to disempower noncitizens who generally happen to live in Democratic areas?

adam liptak

Yeah, exactly right. And the second thing, though, in the documents is some sense that the offered reason, the asserted reason, ought to be a different rationale entirely, that the administration was seeking citizenship data to better enforce the Voting Rights Act and to protect minority voters.

michael barbaro

And what was the connection between this deceased strategist, whose documents were found by his daughter, and the Trump administration?

adam liptak

It’s a little bit of a dotted line, but what’s clear from the documents — and it’s early days, and we only have partial information — but the strategist gives at least some of these documents to an adviser to Wilbur Ross, the commerce secretary.

michael barbaro

Wilbur Ross, the cabinet secretary who is in charge of the census.

adam liptak

Yes, and some of the language in the documents shows up in some letters transmitted back and forth within the administration. So clearly this guy, who was a big deal to begin with, had his hand in at least some part of the decision-making process.

michael barbaro

So Adam, this, it seems, reveals that the Trump administration’s real motive here was, as many people suspected, partisan — it was about advancing the cause of the Republican Party — but that it recognized that it couldn’t just come out and say that. It needed a more sophisticated-sounding rationale, and that this Republican strategist provided one.

adam liptak

Yep.

michael barbaro

So then what happens?

adam liptak

So it’s June 27. It’s the last day of the Supreme Court term.

archived recording The U.S. Supreme Court very busy this morning. We start with some breaking news from the nation’s highest court.

adam liptak

The court is announcing several decisions. The census decision is the very last decision, and there comes a surprise. We have Chief Justice John Roberts writing for the majority. And in the beginning of the decision, it looks like what I would have predicted, that the administration’s going to win. He rules for the administration on several points. He says they didn’t violate the Constitution, that this voting rights rationale was not arbitrary and capricious, but —

archived recording 1 The court ruled that the Trump administration’s explanation for adding a citizenship question to the census is, quote, “insufficient.”

adam liptak

— in the last pages of the decision and in language that seems kind of thrown together, maybe evidence of a late-in-the-day switch on his thinking, he says, but you know what? The administration loses, because this sounds like a pretext to me. This is contrived.

archived recording — contrived. Then goes on to say that we cannot ignore the disconnect between the decision made and the explanation given.

adam liptak

And he rules against the administration, at least provisionally. He leaves the door ajar a tiny bit to say, maybe you can come back with a different reason. But lo and behold, Roberts, joined only by the four liberal members of the Supreme Court, rules against the Trump administration in this very area of, can Wilbur Ross be trusted? Was he telling the truth? We have now the chief justice of the United States essentially calling a cabinet official a liar.

michael barbaro

So he’s taken into account everything you just described, and he is saying, essentially, that the Trump administration, Wilbur Ross, the commerce secretary, is being disingenuous about motivation.

adam liptak

Yeah. He says that six different ways, all of them mild but collectively very damning. But I should say, nowhere in the decision is there any discussion of these strategist’s documents as such. Although these documents we’ve been talking about were plainly in the background and everyone knew about them, they’re not mentioned in the decision.

michael barbaro

But even though they weren’t mentioned, it sounds like you think that it did, at least in part, influence Robert’s decision.

adam liptak

I do think that because I don’t know what else would explain the complete change in tone between the April argument and the June decision except for the developments in late May.

michael barbaro

So at the end of the day, is Roberts saying to the Trump administration, the law was on your side here? You could have included this question about citizenship if only you had given us a more believable, authentic-sounding, consistent justification.

adam liptak

Yes. I think that’s exactly right. And the chief justice, as I say, leaves the door open a little bit. He doesn’t dismiss the case. He sends it back down to the agency and suggests that maybe, even now, they can come back with a better reason.

michael barbaro

Adam, I’m a little confused by this, because if Roberts really thinks that the rationale that’s been presented to the court is contrived, it’s manufactured, why is he allowing the administration to try to make another case? Isn’t that almost by definition going to produce a contrived rationale, because at this point the administration seems to be invested in kind of reverse engineering an explanation for doing this?

adam liptak

I completely get what you’re saying. It’s pretty hard to say that the new explanation won’t be twice as contrived as the old one, given that you have to hunt around for something that’s different from the one you’ve already presented to the court as the only thing you’re relying on. Wilbur Ross said he was solely pursuing this in order to enforce the Voting Rights Act. At the same time, it’s at least conceivable. Chief Justice Roberts wants to give the administration every chance that there is some lurking, authentic reason that if they’d only just articulated from the get-go may be acceptable. I know it’s a long shot, but that was what the chief justice left open the possibility of, although it ain’t easy. And Michael, it seems to me that had they said from the start that what they wanted to do was provide information to states that wanted to draw election districts in a different way, I think that would fly. I don’t know that that’s a problem. The Supreme Court has left that question open about how you draw districts. As recently as 2016, Justice Ruth Bader Ginsburg says, well, you’re not required to draw them based on eligible voters, but we’re not deciding that you’re not allowed to draw them based on eligible voters. Come back to us later. So had they done that from the start, I think it probably flies. And this interesting and sort of amateurish-looking litigation strategy turns out to hurt them.

michael barbaro

We’ll be right back.

[music]

michael barbaro

O.K., so what does the Trump administration actually do with this ruling from Chief Justice Roberts?

adam liptak

Well, now, Michael, the chaos starts.

archived recording The U.S. government will print the forms for the 2020 census without a question about citizenship.

adam liptak

What they do a few days later is come into a federal district court and say, we give up. Game over.

archived recording 1 Justice Department lawyers told a federal judge on Tuesday the fight was over. archived recording 2 Last, today, it looks like the Trump administration basically had to admit it was all a ruse and wave the white flag.

michael barbaro

Basically, we accept defeat.

adam liptak

We accept defeat, and Wilbur Ross issues a statement to that same effect.

archived recording 1 I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 census. archived recording 2 The Census Bureau has started the process of printing the decennial questionnaires without the question.

adam liptak

And then the next day, Wednesday, July 3 —

archived recording 1 The president is tweeting up a storm today.

adam liptak

— President Trump tweets out that all of this is fake.

archived recording We are absolutely moving forward, as we must, because of the importance of the answer to this question.

adam liptak

And it’s not clear what the fake is, because the reporting is a perfectly accurate reflection of what people in court and what a cabinet official in a statement said. But nonetheless, the president said it’s fake.

archived recording That tweet prompted a scramble at the Justice Department.

adam liptak

They’re now being instructed to go in an opposite direction and hunt up some kind of rationale nonetheless. So the tweet comes out. A federal judge in Maryland promptly sets up a telephone conference call on the record because he wants to know what the hell is going on here. And the Justice Department lawyers, to their credit, are perfectly candid about how confused they are. One of them, Joshua Gardner, says to the judge, “What I told the court yesterday was absolutely my best understanding of the state of affairs and apparently also the Commerce Department’s state of affairs, because you probably saw Secretary Ross issued a statement very similar to what I told the court. The tweet this morning was the first I had heard of the president’s position on this issue, just like the plaintiffs and your honor. I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted. But obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”

michael barbaro

So these lawyers are just as in the dark as everyone else.

adam liptak

Yeah. They made representations to the court. They’re trying to do their level best to be candid and honest and good advocates, and they have on their hands a very difficult client.

michael barbaro

The president.

adam liptak

Yes.

michael barbaro

So Adam, have these lawyers done what the president is asking, which is to come up with a new legal justification for including the question?

adam liptak

These lawyers apparently were not able to do that, and we know that because on Sunday, the Justice Department announces something truly extraordinary. It says it’s swapping out the old lawyers for new lawyers. Now, we don’t know exactly what went on, but it’s very hard to come to any conclusion but that they could not ethically pursue this case, that they did not feel that there was a legally plausible justification, rationale, to go forward with. And perhaps they were fired, although it would be very odd to take off of your team the people who have been living with it for more than a year and who are the most sophisticated and knowledgeable people about a very complicated case and put in a bunch of newbies. Much more likely, they said, please take us off the case, and Justice announces it’s going to put new lawyers on the case.

michael barbaro

So you think that these lawyers are basically saying, we won’t sign our name to this anymore. We will not defend the president’s pursuit of this question on the census. We’re done.

adam liptak

That’s my reading of it, yeah.

michael barbaro

So how’s it been going for these new lawyers?

adam liptak

We don’t know yet. What we do know is that one judge in New York has said he’s not going to let the old lawyers out of the case, at least until they come up with, quote, “satisfactory reasons for withdrawing.” So now we have another little sideshow about whether the old lawyers are allowed to leave or not. There is a local court rule in the federal district court in Manhattan that says you can’t just jump off a case. It’s very disruptive. And in this case in particular, it’s more disruptive than most, because everybody knows time is of the essence.

michael barbaro

So it turns out that the Department of Justice is not allowed to switch lawyers in the middle of a case without explaining exactly why, and explaining exactly why, I presume, would be embarrassing if you’re right that they quit in protest because they don’t like how this has been handled.

adam liptak

Yep. That’s the problem.

michael barbaro

So this is definitively not proceeding well for the Trump administration.

adam liptak

Yes, that’s right. Whatever Chief Justice Roberts expected when, at the end of June, he ruled against the administration but suggested that maybe there’s some kind of path forward, I do not think that this is what the chief justice bargained for, and I have to think that the chief justice, who is himself a senior Justice Department official and who prized the Justice Department’s credibility in court, will have very little patience for this chaotic scene we’ve seen over the past couple of weeks. So I don’t know that the administration had much of a shot in the wake of last month’s decision, but with each passing day it really becomes quite remote that they could get five votes on the Supreme Court to sustain whatever new rationale they come up with.

michael barbaro

Why do you think the administration is fighting this so hard at this point, Adam? Why keep pursuing these strategies that seem very unlikely to actually succeed in putting this question on the census?

adam liptak

Well, there are two reasons. I think one of them is political. The president doesn’t like to lose, would rather fight and show his base how committed he is to these issues, even at the expense of an ultimate loss. But the other is, let’s not lose sight of, Michael — this is a big deal. If this question goes on the census, it will really alter response rates. It’ll alter the allocation of billions of dollars of federal funds. It’ll alter the allocation of congressional seats. So we’ve been talking about litigation maneuvers and who’s telling the truth about what, but the bottom line, the larger point here, is that whatever the answer is, it’s going to have a big impact on the way American democracy happens and the way all kinds of federal money is spent. So the stakes are awfully high.

michael barbaro

So from the president’s point of view, this is all worth it if he ultimately gets this question on the census, because that’s a huge victory for his party and his party’s future and its future power. And if he loses, at least he has shown his party and his voters that he’s passionate about this issue, which is central to so many issues he stands for around citizenship, immigration, and power.

adam liptak

I think that’s right. I think this may well be a win-win for the president. And there’s a way in which the president may have already won, because he’s drawn so much attention to the census and suggested to people who may be wary of participating in the census that it could be a dangerous thing for them that the chances that people won’t participate with or without a question may well have dropped. So the damage to the integrity of the census may already be done even if the Trump administration circulates a census form without the citizenship question but people don’t want to answer it either way because they’re afraid of what will follow.

michael barbaro

So even if this question likely does not appear on the actual census form, immigrants might opt not to fill out the form anyway, something that would end up helping Republicans and the president.

adam liptak

Yeah. So it’s possible that the president wins by actually winning in court. It’s possible the president wins political points by keeping fighting and ultimately losing in court, and it’s possible that he wins his larger battle either way because he has turned the census into something that some groups think is radioactive, that you don’t want to be associated with because no good will come of it for you.

michael barbaro

Adam, thank you very much.

adam liptak

Thank you, Michael.

michael barbaro

We’ll be right back. Here’s what else you need to know today. The British ambassador to the U.S. resigned on Wednesday after his candid observations about President Trump were leaked to the news media, and President Trump said he would no longer work with him. The ambassador, Kim Darroch, had written a series of diplomatic cables to his superiors in London describing Trump as inept and insecure and his administration as uniquely dysfunctional.

archived recording (theresa may) Mr. Speaker, this morning I have spoken to Sir Kim Darroch. I have told him that it is a matter of great regret that he has felt it necessary to leave his position as ambassador in Washington.

michael barbaro

In a speech on Wednesday, British Prime Minister Theresa May defended Darroch and seemed to praise him for his honest assessment of the Trump administration.

archived recording (theresa may) Good government depends on public servants being able to give full and frank advice. I want all our public servants to have the confidence to be able to do that.

michael barbaro

And —

archived recording (alexander acosta) Good afternoon.

michael barbaro

During a news conference on Wednesday, President Trump’s labor secretary, Alexander Acosta, offered his most forceful defense yet of a 2008 agreement, which he oversaw, to not bring federal charges against Jeffrey Epstein.

archived recording (alexander acosta) Facts are important, and facts are being overlooked. Simply put, the Palm Beach state attorney’s office was ready to let Epstein walk free, no jail time, nothing.

michael barbaro

Acosta said that his office reached the agreement after determining that state prosecutors were on the verge of allowing Epstein to avoid serving jail time, registering as a sex offender, or compensating his alleged victim, an account disputed by those prosecutors.

archived recording (alexander acosta) Prosecutors in my former office found this to be completely unacceptable. Our prosecutors presented the ultimatum: Plead guilty to more serious charges, charges that require jail time, registration and restitution, or we’d roll the dice and bring a federal indictment.

michael barbaro

Epstein eventually served just 13 months in prison, during which time he was allowed to leave during the day to work out of his office. Acosta said that he recognized why people now question the agreement, which a judge has found to be illegal, but said that the agreement had followed Department of Justice guidelines and that given the evidence against Epstein at the time, it was a better option than going to trial.

archived recording (alexander acosta) And I know that in 2019, looking back on 2008, things may look different, but this was the judgment of prosecutors with dozens of years of experience.

michael barbaro