Judge Blocks DOJ's Attempt to Switch Lawyers in the Census Citizenship Question Case

The DOJ's attempt to introduce an entirely new team of lawyers to work on the citizenship question case is rejected - correctly - by the SDNY.

|The Volokh Conspiracy |

The census citizenship question case (New York et al. v Dep't of Commerce, back in the SDNY after remand from the Supreme Court in June) has taken a strange new turn. On Monday, the DOJ submitted a motion to withdraw en masse the DOJ lawyers who had been working on the case over the past year and to substitute other DOJ lawyers in their stead.

It might surprise people who are not lawyers (as it surprised me, when I first learned about it in my law school "Professional Responsibility" class) that a lawyer can't simply drop a client whom he/she has been representing in court, the way an ordinary business can decide not to do any further business with a client. SDNY's Local Rule 1.4 (typical of the genre), a lawyer "who has appeared as attorney of record for a party … may not withdraw from a case without leave of the Court," which shall be granted only if the lawyer (a) provides "satisfactory reasons for withdrawal" and (b) explains "the impact of the withdrawal on the timing of the proceeding."

The DOJ's motion provided neither (a) nor (b), and yesterday—unsurprisingly, and correctly—Judge Furman denied the motion.

Defendants' motion is patently deficient. Defendants provide no reasons, let alone "satisfactory reasons," for the substitution of counsel. And as to the second factor, Defendants' mere "expect[ation] that withdrawal of current counsel will [not] cause any disruption" is not good enough, particularly given the circumstances of this case: Defendants' opposition to Plaintiffs' most recent motion is due in just three days; Defendants' opposition to Plaintiffs' anticipated motion for sanctions is due later this month; and, in the event that Defendants seek to add the citizenship question to the 2020 census questionnaire based upon a "new rationale," time would plainly be of the essence in any further litigation relating to that decision. As this Court observed many months ago, this case has been litigated on the premise — based "in no small part" on Defendants' own "insist[ence]" — that the speedy resolution of Plaintiffs' claims is a matter of great private and public importance.

[Judge Furman did grant the motion to withdraw with respect to two DOJ lawyers who did have a "satisfactory reason" for withdrawal, having recently left the DOJ].

What happens now**?  It's an interesting question. For the moment, at least, the original team from DOJ continues to represent the Commerce Department in the case.  Judge Furman's denial of the DOJ's motion was "without prejudice," meaning that the DOJ can resubmit its motion for withdrawal/substitution, but the Court specifically noted that "any new motions to withdraw shall be supported by a signed and sworn affidavit from each counsel seeking to withdraw stating 'satisfactory reasons' for withdrawing at this stage of the litigation," along with "unequivocal assurances … that the substitution of counsel will not delay further litigation of this case."

So this could get interesting. One possibility: The government could resubmit the withdrawal motion and provide the hitherto-unrevealed reasons for withdrawal.

Whether the DOJ takes this route may depend on what those reasons are.  Why are these attorneys—the entire team that worked on the case!—being withdrawn, and will the DOJ be willing to set those reasons out in writing?

I don't know the answers to those questions, but here's my guess.  The attorneys involved in the case made representations to the district court and the Supreme Court about the need for "expeditious resolution"—in particular, that June 30 was the drop-dead date for including a citizenship question with the other census questions. If they were to come into court now bearing a request for the court to examine the government's "new rationale" for the citizenship question, the court is going to stop them and look them in the eye and ask:  "Didn't you tell me—in a court filing that you signed—that June 30 was the drop dead date?  Wasn't that how you got me, and the Supreme Court, to hear this case on an expedited schedule?  You weren't lying to the courts about that, were you?"

A second possibility is that the government foregoes this route, drops its request to substitute new counsel, and simply continues to use the same lawyers it has been using—ordering them, as DOJ employees, to keep working on the case. But if I'm right about their reasons for seeking withdrawal, that puts the lawyers in a very, very difficult spot; courts understandably don't like to be intentionally misled by attorneys appearing before them, and there are potentially serious sanctions that can be applied to those who do so.

The third possibility—and I think this exhausts the list of possibilities—is that the government could throw up its hands and agree to comply with the Supreme Court's decision and eliminate the citizenship question.

An interesting and unusual denouement, whichever one of the three directions it goes.

** We should not pass over President Trump's response to this decision—a tweet in which he asserted that "the Obama appointed judge on the Census case … won't let the Justice Department use the lawyers that it wants to use."  Though we have grown used to Trump's references to "Obama appointed judge[s]," we should not let that become the new normal, and we should renew our outrage each time he does it.  It is part of the campaign to peck away, tweet by tweet, at the legitimacy of the federal courts; it is straight out of the Authoritarian's Playbook and needs to be resisted at all costs. Chief Justice Roberts took the very unusual step last year of publicly admonishing Trump for these attacks—"We do not have Obama judges or Trump judges, Bush judges or Clinton judges"—and I, for one, continue to find them appalling and destructive. And it is a particularly pathetic response in this case—a case in which the governing Rule requires presentation of "satisfactory reasons for withdrawal" and where the DOJ actually submitted no reasons at all, and where it's hard to imagine any judge in his/her right mind who could possibly have ruled any differently.

 

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  1. “So this could get interesting.”

    Be sure to let us know as soon as it does.

    1. WTF?
      If a party doesn’t want a current attorney to represent them, they should be able to replace them.
      Period.

      1. Sometimes parties try to change lawyers as a strategy to gain advantage in the proceedings – maybe they want a delay in the proceedings for example. That is probably why such local rules exist.

      2. Exactly!
        This article is written as though the lawyers don’t want to represent the clients, anymore, when it is a case of the client no longer wanting the lawyers, that have been doing a bad job, to continue.
        Yes, lawyers can’t abandon a client, without the court’s approval.
        A client, in this case the DOJ, should always be allowed to replace their lawyers, unless there is proof of it being for the purpose of it being a delaying tactic.
        Since the current situation is that the government can’t put the question on the forms, and time is running out, a delay doesn’t seem to be their desire.

  2. Although the judge can make it hard for existing D counsel to withdraw, my guess is that what will happen is that the old counsel stay in the case but no longer sign any papers, while new counsel take over the case and sign all the papers.

    1. I expect the judge would get testy if the old counsel don’t show up in court, though.

    2. It’s possible. On retrospect, it’s not that hard for the current lawyers to say “they didn’t lie, but the Census could still be changed”.

      The argument would go something like “The Census is very important. To ensure the forms are printed on time, we build in error time, as things may happen. Paper shortages, equipment failures, building fires, contractors going bankrupt, etc. In order to absolutely guarantee we had enough forms on time, we needed to start printing now, and we did start printing now. However, we could in theory, acquire a second printer, or use emergency spending authority. We couldn’t absolutely 100% guarantee the new forms would be done on time. But we would have a high likelyhood that they would be. A high likelyhood isn’t good enough for a “drop dead” date though. We have the opportunity to fix it, but not guaranteed.”

      1. They swore to a much more concrete statement than that. See my 4:44 post.

        1. From your 4:44 post, it’s not really different.

          A finalization date that did not build in error time due to potential delays would impair the ability of the census to guarantee the Census would be done on time. And remember, they are currently, actually, printing the census.

          That doesn’t mean emergency spending authority and emergency contracting “Might” be able to Print a new census. There may need to be a hefty surcharge. But realistically, it doesn’t take 9 months to print out 500 million forms. (Given government contracting, that’s a different story)

          1. They said nothing about risk mitigation time.

            And they also tied the answer to this question to the date, saying nothing about the printing deadline.

            You are assuming facts not in evidence.

            1. Sigh…

              These are terms and practices in common parlance, and are extremely common to anyone involved in contracting with time specific manners. Moreover by use of the word “impair” and not something more severe, (like eliminate), it implies a risk.

              Let’s give a simple example. When you have a plane flight, you’re told to be there 2 hours before the plane leaves. That’s the deadline, if you 100% guaranteed want to be on the flight. If you miss the deadline, you might be able to get on the flight. You might not, due to delays at the airport.
              You don’t tell the judge that the actual time the flight leaves is the deadline (because then you’d almost certainly miss the flight). You give him the 2 hour mark, because that’s the 100% guarantee. Now you could get there 60 minutes before the flight. Many do, and many make the flight. But if you do, you could still miss the flight.

              Make sense?

    3. They’d have to file notices of appearance first. And I’m guessing the judge, and certainly opposing counsel, is going to be suspicious if a bunch of new notices of appearances are filed.

  3. This is just as asinine and enslaving as requiring florists and bakers and photographers work for anyone who pays the price.

    And why any client would want someone to work for them as a temporary slave, and why anyone would expect good product, is beyond me.

    I have a rule in restaurants: never send food back unless I am walking out at the same time and never expect to return.

    1. “And why any client would want someone to work for them as a temporary slave, and why anyone would expect good product, is beyond me.”

      It’s beyond you because you aren’t a lawyer. The client (or its lawyers) might be using the withdrawal to intentionally delay the proceedings.

      1. So sanction the delay, not the withdrawal.

        1. You can do that by requiring assurances from counsel that the replacement lawyers will not result in delay. Which is what the court did, functionally. But if the court granted the withdrawal, it may be unreasonable, and reversible error, to deny a request for an extension/continuance.

  4. Obama appointee. Completely predictable.

    1. As Prof. Post pointed out above, this is a dumb comment (though it also seems to be your favorite comment to make.)

      Chief Justice Roberts took the very unusual step last year of publicly admonishing Trump for these attacks—”We do not have Obama judges or Trump judges, Bush judges or Clinton judges”—and I, for one, continue to find them appalling and destructive.

      And it is a particularly pathetic response in this case—a case in which the governing Rule requires presentation of “satisfactory reasons for withdrawal” and where the DOJ actually submitted no reasons at all, and where it’s hard to imagine any judge in his/her right mind who could possibly have ruled any differently.

      1. Maybe WJack just disagrees with Roberts?

        After 2 1/2 years of The Resistance!!! judge brigade, Roberts comment is absurd.

        1. What’s absurd 2 years of the usual suspects around here insisting any ruling against Trump is made in bad faith before they even read it or beyond the headline of the post they’re replying to.

          At this point, not reading and yelling bad faith is about 90% of what WJack posts these days.

          At least engage with the substance of the opinion before you decide you disagree so hard no actual judge could think what they wrote.

          1. Having another bad day with the voices?

            1. Are you saying my characterization of your post is incorrect? Then correct me – do you think judges appointed by Obama ever rule on cases about the Trump administration in good faith?

              1. You sure do get up on a high horse when you (think you) catch someone being duplicitous. Now how about yourself?

        2. 1. Anyone who lives in the real world knows that judges are not demigods and there are indeed Obama judges. 2. Roberts’s comment proved Trump’s point. His act of responding was a political act.

          1. There’s a lot of middle ground between ‘demigods’ and ‘aren’t complete partisan tools of their party’ like Trump claims.

    2. If the GOP had any balls, they would have blanket impeached every since Obongo/Klinton appointee when they had the House.

    3. The left does pretty much the same thing about Bush or Trump Judges all the time.

      1. And they’re wrong when they do that as well.

        Though I’ll admit I don’t usually see such on liberal legal blogs.

    4. If who appoints the judges doesn’t matter…why do both parties fight so much over judicial appointments?

      1. Oh, a judges preferred jurisprudence sure does matter. But that’s not the same as the WJacks’ world wherein all judges not agreeing with Trump are unreasoning partisan tools.

        1. You read an awful lot that is not there into “Obama appointee. Completely predictable.”

          The president who appointed a judge is the single largest indicator of which way a judge will vote, at about 70% or so success rate. It’s called the Attitudinal Model of Judicial Behavior, and it’s actually fairly good social science. The only issue, if you could call it that, is coding case outcomes as “conservative” or “liberal” gets tricky at times.

          If your sincerely interested, I can provide some links.

          1. I recall the model from my jurisprudence course back at law school. It’s not completely invalid, but neither is it determinative. And it also doesn’t apply here.

            First, I’m quite skeptical of that 70% figure since judges tend to agree with one another most of the time. Because most cases are not partisan. Like this one.

            Second, this is a procedural case not a substantive one, so whatever your model is I’d be surprised if it applied here.

            Third, as Prof. Post noted, this is an open-and-shut application of the text of the Rule, based on the government’s complete failure to address it’s requirements. Hard to see partisanship in that.

            Fourth, you really need to stretch to see WJack’s comment as any more than knee-jerk ‘Against Trump = Orange Man Bad Bad Faith’ especially since the OP discusses this very issue and WJack doesn’t appear to have bothered to read it.

            1. Don’t mistake pithiness for “knee jerk”. Brevity is underrated.

              Because you agree with the OP, it makes you partially blind to how you’re calling WJack out for things he didn’t say.

              That .70 r-square comes from SCOTUS and (without looking it up) district court cases, not trial courts. It’s actually even higher for SCOTUS, which can pick and choose which cases it wants, and where judges are already at the pinnacle of their profession and thus don’t have to worry about being overturned, or their ambitions for higher office.

              There is no such thing as mechanical jurisprudence. The same facts in this case could be given to a Trump appointee motivated to get Ginsburg’s seat, and he could come up with perfectly rational and legal explanations for allowing the swap. This doesn’t mean that the Obama appointee’s legal reasoning wasn’t equally valid, btw. It’s no different from the old saw about 5 lawyers and a room and 6 opinions.

              1. I point you downthread to WJack’s 2:11pm to vindicate my interpretation of his view.

                SCOTUS has more 9-0 than 4-5, so I’m reasonably sure there’s some sample bias going on in that 70% number, probably picking only cases with some partisan valence.

                If you’re going to go full legal realist, then what else is there to say? But I don’t think you’ve claimed to be that extreme in the past.

                1. WJack’s comment at 2:11, made long after you’re comment, is not proof positive of anything, he merely restates the same point in a longer sentence. Saying “Only those here, who are completely oblivious, seem to think Obama’s appointees might not rule against Trump” is the same thing as saying “Obama appointee, completely predictable.” You must really want to find something that just ain’t there.

                  The Attitudinal Model looks at different areas of jurisprudence independent of each other, like criminal law, so it’s not a sampling problem. Like I said, the biggest critique is that coding cases as “liberal” or “conservative” for their outcome is sometimes difficult.

                  Ever check out the database? It’s quite complete.

                  Legal realist? No. Legal cynic, yes. The facts of the case do matter, you can’t take a case on religious freedom and get a ruling that there is a right to not have excessive bail charged, but ideology interposes itself on top of the facts.

              2. “That .70 r-square comes from SCOTUS and (without looking it up) district court cases, not trial courts.”

                District courts are trial courts.

                1. “District courts are trial courts.”
                  Bah, typo, what I mean was circuit appeals courts. I think you know what I mean anyway.

                  1. I do now. But if your data set doesn’t include trial judges, what does your assertion have to do with a trial court’s interpretation of local rules?

                    1. Because it is a logical extension of a general rule found from where we have good data (by the nature of the process) to where we only have marginal data (by nature of the quantity of data) but which also triangulates with qualitative data on judicial decision-making.

                    2. Without you providing the links, I don’t know how good the data is.

          2. Provide the links.

              1. Do you agree now that you overstated your point, earlier?

              2. Finally, as for the juxtaposition between the justices’ ideology and case stimuli, the model well predicts the Court’s search and seizure decisions, where the combination of the justices’ attitudes and a series of case stimuli leads to a model that predicts 71% of the justices’ votes correctly.

                Eh, we all misread. But you did double-down perhaps more than was advisable.

                1. Meh. I’ve not read the 2nd edition and it’s been years, but the conclusion are broader than the blog post summarizes, applicable across more types of cases. For instance, in that same blog post, for instance, I hope you noted the author’s finding a relationship between liberal justice’s ideology and “their aggregate voting behavior once on the Court (r = .78).”

                  In short, liberal justices, as identified by op eds written prior to their arrival on the court, vote liberal 78% of the time in all types of cases.

                  1. Forgive me if based on your recent performance I don’t take your intepretation of ‘aggregate voting behavior’ at your word.

                    Especially since justices agree with one another 9-0 30% of the time…

                    https://empiricalscotus.com/2018/12/04/differences-between-judges/

                  2. mad,

                    “In short, liberal justices, as identified by op eds written prior to their arrival on the court, vote liberal 78% of the time in all types of cases.”

                    That’s not what the blog posts says. “aggregate voting behavior once on the Court” is still in reference to “search and seizure cases”. Notice that directly after the .78 he says “(updated from Segal and Cover 1989 APSR)”. The “APSR” is referencing the “American Political Science Review”, and an earlier paper (1984) specifically limited to “search and seizure cases”.

                    You wouldn’t need to have read the paper to know this. There are a whole universe of case types that have no “liberal” or “conservative” priors. Most cases, actually.

                    You aren’t even reading the blog post right, though. His .78 conclusion isn’t limited to “liberal justices”. The reference to “liberalism of their aggregate voting behavior” is not a reference to liberal judges. It’s just describing the outcome from a baseline of “first liberal, then moderate, and then conservative judges”. The author is saying that the .78 describes a relationship between all judges’ ideologies, and the outcomes (liberal, moderate, or conservative). In other words, “liberalism of their aggregate voting behavior once on the Court” includes conservative justices who cast votes that are very short on “liberalism”.

                    1. Let me make a final point. You’re confusing the “r=.78” with “vote liberal 78% of the time”. R-values are describing a correlation, but not necessarily in the way you’re interpreting it.

                2. “We all misread”??? You can’t even admit YOU made a mistake without dragging in everybody else.

                  1. I’ve admitted mistake before, and I’ll do it again. But your tu quoque is pretty lame.

          3. Solving the liberal/conservative coding problem is easy. There is one narrow class of cases upon which the justices run more true-to-partisan form than any others. Those are political process cases, like Shelby County, Citizens United, and Rucho. Cases like those directly affect the partisan outcome of elections, and on those cases the justices run most true to predicted partisan form.

            Court observers need to be careful not to confuse that class with a different class, which I think of as high-political-valence cases. Those are cases like Roe and Sebelius—cases in which there are fierce partisan divisions about the contested issues, but which are otherwise less-related to politics. Members of political parties care deeply about how those cases come out, but how they come out affects political outcomes only indirectly, if at all. On that second class of politically-related cases, the justices may still divide pretty predictably, but with more exceptions.

            I suggest that shows three things worth knowing. First, that partisan divisions on the court are far too evident, and a threat to the court’s legitimacy. Second, if you stick to political process cases as your test, you discover without ambiguity that there is little to choose between the political sides. Neither has a moral advantage. Both sides vote consistently down the party line when the political stakes are at their highest. Third, those facts about politics and the court do not prove that everything the court does gets a political taint. But conversely, that is mainly because most of the other stuff isn’t really about politics. So observers who use surveys including all that other stuff tend to come to absurdly optimistic conclusions, as they present what they suppose is evidence showing there is not too much political bias on the court.

            1. The thing is, only one of the parties thinks of Citizens United as a “political process” case. The other party thinks of it as a rather straightforward “freedom of speech” case.

              1. Given that the outcome was decision which changed the rules for a political process, that would be a pretty blinkered interpretation, even acknowledging that it was a free speech rationale that was cited to defend the change.

            2. “There is one narrow class of cases upon which the justices run more true-to-partisan form than any others. Those are political process cases, like Shelby County, Citizens United, and Rucho. Cases like those directly affect the partisan outcome of elections, and on those cases the justices run most true to predicted partisan form.”

              Curious to see your evidence for this claim. It’s going to be pretty messy–just look at Citizens United. The conservatives on the Court struck down the portion of the BCRA (which according to Kagan’s dissent in the Gerrymandering Cases was not a meaningful attempt at reform) dealing with corporate expenditures but voted with the liberals to uphold the portions of the BCRA dealing with disclosures. How does that split by the conservatives factor in your analysis?

              And how are you going to pick out the other narrow categories to compare the results to? You can’t just compare it to the baseline of all the cases. That’s the kind of shoddy analysis the government tried to rely on in Shelby County.

      2. Do you think it’s because they care about SDNY local rule 1.4?

    5. I agree. It was completely predictable. Because of the rules.

    6. “Obama appointee. Completely predictable.”

      Trump commenter. Predictably uninformed. And bigoted. And soon to be replaced.

  5. The Local Rule specifically refers to prohibitions against “withdrawal”. Withdrawal, in my opinion, generally refers to a situation where the withdrawing attorney leaves the client with no representation. In this case, however, it seems to me that the situation is more akin to a “substitution of attorneys” than to a “withdrawal,” and that therefore the cited Local Rule should not apply.

    1. Agreed. This isn’t the attorneys jumping ship, this is the attorneys being fired.

      It’s news to me that a judge can force a party in a case to retain counsel they don’t want.

      1. Then have the DoJ say that as the reason, and say the general reason why they were fired.

        It’s not like this is a hard ask.

        1. It’s not hard. You just say, “We no longer think this legal team is the best one for the job.”

          After all, it’s not like you have to give a persuasive reason to change your own lawyer. You just have to want to. That’s the mistake here: You have to give a persuasive reason for abandoning a client who wants you to continue representing them. To leave a client who wants you gone?

          No reason needed, that the client wants rid of you is reason enough.

          1. But they didn’t even do that, is the point. And now I don’t know that such will be enough, given that the judge’s hackles are now up and given the text of the Rule (which I learned about in legal ethics and doesn’t seem particularly out of the ordinary from what my non-practicing self knows)

          2. Actually, there are many situations where court rules do require you give a reason for a substitution of counsel, Brett. It’s not automatic. I generally rebel from the expression “lawyers are officers of the Court”, which obscures more than it clarifies, but this is an instance where that notion has real bite. The lawyer in litigation represents the client but works for the court system. (This is a gloss on the Barrister-Solicitor distinction in the UK; litigation counsel (Barristers) work for the Court system and are engaged by Solicitors; Solicitors work for clients.)

            And it seems to me that one reason why a court might deny a substitution is if you are intending to have your new lawyers repudiate a factual claim (such as when the census needed to be printed by) made by your old lawyers in an attempt to achieve a particular result (a quick decision upholding the citizenship question).

            1. So, Dilan, how does your theory apply to General Flynn’s recent substitution of counsel? His new counsel is repudiating his old counsel’s position that Flynn should cooperate with the Government’s Special Counsel, but that substitution appears to have gone through without a hitch.

              1. 1. I don’t think Flynn’s Counsel signed anything making a factual statement to the Court about a deadline or whatever that now they’re changing – indeed, they insist they’re still saying Flynn is cooperating, I think.

                2. What’s the local Rule in that court?

              2. An interesting analogy.

                1. I don’t think Flynn’s Counsel signed anything making a factual statement to the Court about a deadline or whatever that now they’re changing – indeed, they insist they’re still saying Flynn is cooperating, I think.

                2. What’s the local Rule in that court?

              3. “So, Dilan, how does your theory apply to General Flynn’s recent substitution of counsel?”

                Pretty good example. Flynn’s old lawyers filed a motion to substitute. The trial court denied it on technical grounds. Specifically it didn’t comply with local rules, and the lawyers failed “to indicate the manner in which the motion was served upon Mr. Flynn.” (Does this sound familiar?) Then Flynn’s old lawyers refiled correcting the technical errors, and the court granted the substitution.

              4. Here’s the docket. On the initial denial:

                “MINUTE ORDER as to MICHAEL T. FLYNN denying without prejudice 83 Motion to Withdraw as Attorney due to withdrawing counsel’s failure to comply with Local Criminal Rule 47(c) (“Each motion shall be accompanied by a proposed order.”) and failure to indicate the manner in which the motion was served upon Mr. Flynn. See LCrR 44.5(d). Signed by Judge Emmet G. Sullivan on 6/6/2019. (lcegs3)

                Order on Motion to Withdraw as Attorney”

            2. The lawyer in litigation represents the client but works for the court system.

              Clients would be less skeptical of this fine point if “the court system” got the bills.

              1. Why? It’s not unusual for someone to owe obligations to people who are not paying them.

                1. It isn’t unusual for someone hired to do a job to have to follow some set of rules. Even though I pay my Uber driver he still has to stop at red lights, but it would be unusual bordering on bizarre for anyone to characterize the situation as him “working for” the local traffic authority.

          3. After all, it’s not like you have to give a persuasive reason to change your own lawyer. You just have to want to.

            The problem with you, Brett, is that you are quite certain about so many things without knowing much about them. You are mistaken. Once an attorney has entered his appearance in a case, you always need judicial permission to replace him.

            Much of the time that permission is pro forma, but it is not automatic. If the court feels that the substitution is gamesmanship that will lead to delay, the court will turn it down.

            1. It’s almost as if practicing law gives people some actual expertise that you don’t obtain simply reading critiques of the legal system online. 🙂

      2. They aren’t forced.

        The judge denied the motion, cited the local rule, and stated outright that the government can refile the withdrawl notice in a way that complies with the rule.

        I also don’t think the judge said anything about not allowing new attorneys to join. So even if none of the withdrawing lawyers were allowed to withdraw, I would think the new ones could still come in.

    2. “Withdrawal, in my opinion…”

      The DOJ filed a notice of motion to withdraw.

  6. How can it delay the case if the judge just declines continuences/extensions [if even requested]?

    The Obama judge is just showboating

    1. Because that might be reversible error.

  7. “Chief Justice Roberts took the very unusual step last year of publicly admonishing Trump for these attacks”

    Oh noe, Roberts “admonished” him. Why didn’t Trump just resign after that body blow.

    1. Yes, we know you don’t believe in principles other than victory over the libs, so the fact that you see your own lack of integrity everywhere else is not surprising.

      1. When the left’s principles involve destroying America, it seems like a pretty legitimate principle itself.

  8. The Justice Department could avoid the difficult question here by transferring the unwilling lawyers out of the Civil Division. Judge Furman already found – with respect to Alice LeCour – that transfer out of the Civil Division is “good cause” for withdrawal. It would be a pretty in-your-face move to suddenly transfer every one of the affected lawyers, but I’m not sure Judge Furman could do much about it given his prior ruling.

    1. Nah, they want those lawyers out of the case, quite possibly because they suspect them of taking a dive. They don’t want them pissed off and holding press conferences, which is exactly what they’d do if they were taking a dive.

      Thus the “give them a break from this” justification, rather than “put somebody in there who actually wants to win.”

      1. quite possibly because they suspect them of taking a dive.

        Don’t make things up; without any supporting facts this is just tin foil country.

        1. Coming from the guy whose party believes that man made CO2 causes climate change and that race and IQ are not correlated, that’s funny.

        2. Unlike your comment above?

          At this point, not reading and yelling bad faith is about 90% of what WJack posts these days.

          Where are your supporting facts? Or are you just inferring that because you don’t like his opinion?

          1. Whatever, dude.
            Brett is turning baseless speculation about things he cannot know anything about into fact.

            I’m noting a pattern of posts on a blog I read. Maybe I’m wrong, but I’m already more of an authority about what I’m talking about than Brett can possibly be.

            1. That’s some good engagement with the comment you are replying to.

              1. ?

                Read below – Brett is making up a story about bad faith in other people, as usual.

                I’m not – above I ask WJack to clarify if I have him wrong.

                1. You are just as biased and misleading as WJack, except (a) you pretend you are not, and (b) you take a lot more words.

                  1. I disagree with Sarcastr0 a fair amount. I think his wisdom has yet to fully mature. But on the intellectual honesty scale, I put him right near the top. I can’t even figure out what you could be thinking, when you call him misleading. And as for argument payload per word, Sarcastr0 is unsurpassed on this blog.

                    Sarcast0 is sort of the opposite of . . . me. All the time, I wish I were not so wordy. But that’s the way I think. I know how to be more succinct, but it takes me too long. If I need to dash off a comment, it’s likely to be a long comment, because I don’t have time to think enough to make it shorter (but I type fast). So I admire someone with gifts I wish I had. Thanks, Sarcastr0.

                    1. Aww, thanks.

        3. The basis for suspecting that was the race to very publicly give up after the judge’s ruling, and without consulting their client.

          And the key word here is “suspecting”, Sarcastro.

          1. You mean after the deadline they swore to the Court passed? Yeah, following that is surely a sign of secret sabotage.

            1. Please, the deadline given was, explicitly, the point at which changing the questions would require finding extra funds, not a point at which it wouldn’t be possible.

              1. Please, that does not appear to be what they said. The ACLU complied a list.

                1. Geeze, Sarcastro, your own link says, “Francisco said any change to the forms after June 30 would be “infeasible,” absent additional appropriations from Congress,

                  Repeatedly, there are phrases like, “under the current budget”.

                  Their position was that that was the deadline, absent additional funding.

                  1. Your cherry picking is noted, and sad.

            2. To Brett, everything he doesn’t like is the result of some deep nefarious conspiracy against the Republic, motivated by who knows what.

              There’s a word for thinking that way.

  9. ” Though we have grown used to Trump’s references to “Obama appointed judge[s],” we should not let that become the new normal, and we should renew our outrage each time he does it.”

    Why shouldn’t we allow it to become the new normal, when the courts are busily creating Trump only rules?

    1. And when Obama judges are acting in manifest bad faith.

  10. Absurd. That rule applies to withdrawal by the attorney, not by the client.

    We need a strong leader like Pinochet, like yesterday.

    1. Thank god. I’d been tricked by Liberaltarian for months before I caught on that it was satire, I’m glad to find that you, too, are satire.

      Well played sir.

      1. No satire. It’s long past the time when conservatives should have treated liberals with kid gloves.

    2. What’s your basis for this? The rule applies to any order sought to withdraw the attorney, regardless of who files it. But in this case the distinction is without difference, since the government is representing itself.

      1. A client has the right to pick his own attorney. Period. If he thinks his attorney cannot adequately represent him, he can fire him. That’s not to say that a delay is guaranteed if the asks for it, though, but the DOJ didn’t even ask for that.

        1. “A client has the right to pick his own attorney. Period.”

          This isn’t necessarily true. Courts appoint lawyers for people all the time. Often over the parties’ objections. But it doesn’t make any difference, because parties do not have a categorical right to withdraw their counsel. You still have to ask the court for permission. It’s especially difficult in federal court, even setting aside the local rules.

        2. A client has the right to pick his own attorney. Period. If he thinks his attorney cannot adequately represent him, he can fire him.

          Wrong. Once an attorney has entered an appearance, court permission is required, regardless of whether it’s the attorney’s idea or the client’s.

          1. Sure, but the “permission” is a formality. As long as the replacement is competent and it won’t unduly slow things down, the judge grants it. This is Trumplaw.

            1. So you’ve never practiced law in federal court. Got it.

            2. It typically is a formality. But not always – and never (in federal court, anyway) if the rules are not followed.

              1. From what I see, it looks like the rules were followed.

                1. Did you see the part where they didn’t file affidavits explaining why they were withdrawing and how it wouldn’t affect the case?

  11. The new team is necessary so the DOJ can argue “The previous team were a bunch of whackos; we, the new team, have no idea where they got the reasons for inclusion of the question or the printing deadlines presented to the court; and The Real Reasons and Deadlines are…”.

  12. Though we have grown used to Trump’s references to “Obama appointed judge[s],” we should not let that become the new normal

    BULLSHIT.

    As soon as judges stop making up the law as they go along I’ll take you seriously. That the GOP SUCKS at appointing judges does not change facts … when a major Democrat judge makes a habit of major rulings siding with the Republican judicial norm, we’ll talk.

    1. Exactly. Why is it that only Republican appointed judges “swing?” You can find tons of GWB appointed judges who will sign on to an opinion granting a Constitutional right to bugger another dude in the rear, but not a single Obama judge who will sign on to an opinion that the Constitution doesn’t protect baby murder.

      1. Conservative judges, by nature of being conservative, tend to side with precedent and majorities (even if the majority opinion is wacky or wrong). Liberal judges usually are not afraid to go for a preferred policy outcome first and backwash the reasoning.

        1. Right, but that itself is the problem. There have been so many decades of wackiness that any judge who does that is conceding to the left.

          1. Conservatives have let so many squatters into the constitutional house, they are now part owners who don’t hesitate to raid the fridge. It’s hard to kick them out and still be conservative.

        2. 1. Don’t engage the crazy a-hole calling for killing judges, please.

          2. The idea that liberal judges don’t follow Stare as much as conservative ones is not one I’ve seen supported.

          1. You’re a traitor.

          2. I think the idea isn’t stare decesis specifically, but an original understanding.

            So if a prior statute was originally interpreted correctly, stare decesis appears to apply since it reaches the same results, while if it was originally interpreted improperly it doesn’t appear to apply, since you get a different result.

            Prior generations of “conservative” judges really did follow stare decesis, under the theory that it was the proper way tell what a clause means, to look at how it was interpreted in the past as presumptively right that could only be rebutted with strong evidence. Modern “conservative” jurisprudence instead looks to original public meaning, and uses prior decisions only to the extent that they’re persuasive.

            The charge here is that “conservative” interpretations are always bound to what the law originally meant (even if sometimes imperfectly divined), while “liberal” interpretations are based on what the jurist wants the law to be.

            In some places that charge appears pretty accurate (“the people” means individuals in every place in the constitution, except for the one place it would result in an outcome the jurist doesn’t like), while in other (like this case, or the census case) it’s less obvious.

            Aside: I read the census case to say that the government could include the citizenship question for almost any reason, but the Secretary has to tell the real reason for it. In conjunction with the gerrymandering case, that seems to be permissible even if for purely partisan reasons (and ignoring that the 14th amendment seems to require it). We saw the same thing, and the same discussion with Bush II and the firing of prosecutors: they could be fired for no reason, or any reason, so long as it wasn’t a prohibited reason.

            1. Well sure, the right likes to use originalism and the left doesn’t. Though both manage to find ways to make their style line up with their policy preferences.

              Only one tries to delegitimize the other side’s jurisprudence, however.

              But regardless, that is not what mad_kalak says.

    2. The vehemence with which the conservatives on this legal blog rage at the idea of judicial good faith is telling.

      The fact that judges are appointed based on their judicial philosophy and rule accordingly is one thing; it does not mean as Trump and many on here seem to think, that they rule against Trump in bad faith, versus Trump trying to do stuff which they actually think are against the law.

      1. The DEMOCRAT judicial philosophy — NO difference. It is partisanship in place of fealty to the Constitution.

        And stupid decisions like the Trump Twitter case is nothing but partisan.

        1. Ah, so you’re so partisan you see the other side as all pure partisans.

          Shoulda seen that from the first time you said democrat.

          1. I know that it has been explained to you more the once on this very blog what Republican (originalist/minimalist/judicial restraint/etc…) judicial activism would look like so your response can NOT be taken seriously.

      2. Let me put down the marker here and say I have no doubt that the Judge is calling out the DoJ properly, because the DoJ was trying to save face, especially after thinking they would get a favorable ruling from SCOTUS (why they asked for expedition).

        That said, the Judge (and to an extent you) are being silly if both of you think that this isn’t all about the lawyers’ boss from the corner office swapping making them tag out because they are not aligned with his desires.

        1. First, that’s an ex-parte fact that the judge is not allowed to take into account.

          Second, this is how you hold the DoJ accountable. This is a black eye not just for the counsel but for the DoJ.

          1. I’m fine with saying the DOJ and the counsel deserve a black eye here; There never should have been a pretext, and the legal counsel should have told them that.

            OTOH, I’d really like to see the DOJ motion that the judge rejected, and not just the judge’s rejection. To see if the DOJ made it clear that the change of counsel was driven by the client side, (In which case you hardly need any justification.) rather than the attorney side. (In which case justification really is needed.

            1. You think the judge is lying, apropos of nothing.
              How does that fit in with your Deep State Sabotage scenario? Were all of them in on it together?

              Come on, dude.

              1. Lying, omission, interpreting differently, doesn’t matter. As a pretty general rule, I like to see what somebody said, rather than someone else’s description of what they said.

                Does this strike you as somehow objectionable? Why should we not want to see the original motion by the DOJ, and not just the judge’s response to it?

                1. You have no reason to believe that, especially as you below seem to concur that the DoJ likely screwed up.

                  As a general rule, your choices of when you suddenly mistrust someone follows some deeply partisan lines.

                  Look up the papers yourself if they’re public. Otherwise, don’t make baseless accusations.

                  1. “You have no reason to believe that,”

                    The judge is human. That’s reason enough to believe it’s possible.

                    1. Thinking something “possible” in the abstract is not the same as believing it.

                      Once again, you crawfish away with ludicrously technical excuses.

                      “I wasn’t in the delivery room.”

          2. “ex-parte fact that the judge is not allowed to take into account”

            JFC Were you born last night?

            You can’t possibly be that naive.

            1. Believe it or not, judges really do follow that stuff, I’ve seen it!

  13. In this case it sounds like the DoJ didn’t give a good reason for switching counsel, as local rules would require.

    So it’s probably not the best case to focus on the difference between Obama judges and Bush judges.

    But at a time when the parties campaign specifically on the types of judge they plan on appointing if elected, it seems a bit much to be outraged when the parties take each other at their word and reminds voters, “see, this is what you get when the other party appoints the judges.”

    1. Or the same people that say there is no such thing as an “Obama Judge” fight tooth and nail against confirming any “Trump Judge”.

      Not to mention half the Democratic field seems open to packing the court so they can have THEIR judges ruling to THEIR likes.

      1. Everybody wants their judges, and everybody is prepared to use whatever legal means are available to get them.

        You want to excuse McConnell’s behavior on the Garland appointment, or on the high-speed confirmation railroad he’s running, on the grounds that he was within his authority, then don’t complain about Democrats wanting to expand the court.

        1. I won’t complain about the Democrats wanting to expand the court. But then I also won’t complain when patriots start to exercise Second Amendment remedies against the Democrats and their traitors.

  14. Democratic Party platform, 2012:

    “Moving forward, we will continue to nominate and confirm judges who are men and women of unquestionable talent and character and will always demonstrate their faithfulness to our law and our Constitution and bring with them a sense of how American society works and how the American people live.”

    https://www.presidency.ucsb.edu/documents/2012-democratic-party-platform

    It’s the last clause that does most of the work – sharing the Democrats’ “sense of how American society works” etc. sounds like a dog-whistle to their constituencies, especially given the platform’s endorsement of Roe v. Wade and its criticism of Citizens United.

    1. Sounds to me like a willingness to consider facts.

  15. Only those here, who are completely oblivious, seem to think Obama’s appointees might not rule against Trump.

    1. Why are y’all so mad? This is a solvable problem. The DOJ just needs to refile with some affidavits.

      1. I don’t know about them, but I’m mad at the DoJ (and the rest of the administration) for dropping the ball and not doing it right. So many of their problems are because they didn’t follow the right form, not because they can’t do what they’re trying to do.

        1. The Department of Justice problems derived mainly from clients who lied repeatedly to try to cover their bigoted tracks and advance their ugly project. The career lawyers deserved better. The political appointees deserve just what they’re getting.

          1. You’re wrong about that, Brett. They say stuff like ‘The government must finalize the census questionnaire by the end of June 2019 to enable it to be printed on time.’ and ‘the questions presented must be resolved before the end of June 2019, so that the decennial census questionnaires can be printed on time for the 2020 census.’ And ‘Changes to the paper questionnaire after June 2019 would impair the Census Bureau’s ability to timely administer the 2020 census.’

            Your source seems to have lead you astray.

            1. The Department’s current silence may derive from examination of risk to lawyers and clients were the earlier assertions to be contradicted by a new set of positions. How many people are willing to be sanctioned for advancing the causes of bigotry and backwardness?

              1. Right, because the only way “forward” is to fill America with 85 IQ mestizos.

  16. Well if Post is right and the attorneys lied to the judge about the drop dead date then all the more reason to replace them.

    But I’m interested in seeing what Barr came up with to ask the question anyway. I suspect it’s that the President has authority to issue an executive order including the question, and because this case is about Wilbur and the APA then it’s irrelevant to any question about Trumps own inherent authority.

    1. As I’ve pointed out above, if you go to the trouble of looking up what they actually asserted, it wasn’t a “drop dead” date.

      It was a “have to spend more” date.

      1. You’re wrong about that, Brett. They say stuff like ‘The government must finalize the census questionnaire by the end of June 2019 to enable it to be printed on time.’ and ‘the questions presented must be resolved before the end of June 2019, so that the decennial census questionnaires can be printed on time for the 2020 census.’ And ‘Changes to the paper questionnaire after June 2019 would impair the Census Bureau’s ability to timely administer the 2020 census.’

        Your source seems to have lead you astray.

        1. Your own link above is rife with phrases like, ” absent additional appropriations from Congress,” and “under the current budget”.

          They were asserting that, to do it any later, they’d need to find more money.

          1. Brett, they said that once. Scroll further down in my link; lots of examples of them saying…well, the quotes above with no proviso about funds.

    2. “Well if Post is right and the attorneys lied to the judge about the drop dead date then all the more reason to replace them.”

      If the lawyers asserted falsehoods it seems likely that (1) they were not aware they were lying, relying on claims by their lying clients and/or (2) any knowledge about falsehoods among the lawyers was shared by the clients.

    3. This is part of what’s dangerous about Trump’s approach to… um… “governing.”

      Executive orders don’t have the force of law. The president can’t do anything, by executive order, that the statute doesn’t authorize him to do. He can’t just ignore the APA by signing an executive order directing his subordinates to ignore it. He can only order them to do what is within their authority to do, i.e., to comply with the APA, perhaps to pursue a particular policy, change priorities, what have you.

      But he’s got y’all thinking that executive orders are these magical fiats that can just implement executive will. That’s not what they do. Read them, instead of his asinine mischaracterization of them. They are flimsy, toothless things. But he you lot thinking that they’re magical, so that when and if he does purport to do things beyond the bounds of the law, you’ll just clap and coo like the useful idiots you are.

  17. I seem to remember Scott Adams commenting on then-candidate Trump’s ability to drop concepts into the public conversation and frame the debate.

    The fact that we’re having a conversation about whether to refer to Obama-appointed judges as agenda-having “Obama judges” shows that maybe Trump is still able to do this.

    1. I’d say that concept hardly needed Trump to drop it into the public conversation.

  18. Pace Prof. Post, I am deeply dubious that this rule is intended to apply to the substitution of attorneys within a government entity, and I would be very surprised if the Southern District expects this sort of motion to be filed when (for instance) a criminal case is transferred from one AUSA to another. (If anyone who practices in the district wants to weigh in and tell me I’m wrong, I’d appreciate it.) And to the extent that the rule purports to limit the attorney general’s authority to designate who within the Department of Justice will handle a particular piece of litigation, I would say that it raises serious constitutional (and statutory) issues.

    If the rule is being applied as unevenly as I suspect, I think it does tend to show that Justice Thomas was on to something.

    1. The rule is a public record. Which part of it makes you so “dubious” about its application here?

      1. He doesn’t think it’s applied as written, because to do so would have idiotic consequences, such as requiring good cause to swap out prosecutors to accommodate changing workloads.

        Now it could be that’s really how it’s done, and the office just has a template for where they check a box that say “…. because we’re rebalancing case loads…” but on its face that seems like a silly rule – you can just deny extensions that are caused by it instead.

        1. “…because to do so would have idiotic consequences, such as requiring good cause to swap out prosecutors to accommodate changing workloads.”

          That wouldn’t be an idiotic consequence at all. Suppose the defendant filed a motion and it is going to be heard in 4 days. That same day, the prosecution files a motion to withdraw because of “workloads”. After the court grants it, the government asks for a continuance of the hearing to prepare new counsel. The court might then regret having granted the original motion.

          Understanding why courts might be reluctant to allow counsel changes willy nilly, without considering what is pending, what is being heard soon, etc., informs all of this. Context matters. If the prosecution attempts to change the entire team the day before trial, a postponement is inevitable, and that’s going to prejudice the defendant. But the same motion–for the same reasons–filed before the defendant has filed anything in the case, would be a different story entirely.

        2. Well, the motion would have to say “(a) ‘workload reasons for original AUSA ABC’ and (b) ‘it won’t have an effect on defendant, because replacement AUSA XYZ is already prepped to take over the trial’.” Easy-peasy, not “idiotic consequences”.

          But as the OP notes, you have to provide at least *something* for both (a) and (b).

          This is basic rules stuff. FFS people, not every “follow the rules when you resubmit the motion” order has to be partisan.

          1. By “idiotic consequence” I was really getting at the underlying issue that you can withdraw only if you make the right magical incantation – the underlying change is the same whether or not you use the right incantation, but if you don’t say the magic words you don’t get what you want.

            (b) seems to be the only part that should matter, and to NToJ’s point, why should an opponent care about a swap in attorneys if the other side is still bound to the original schedule? I get that as a practical matter a new attorney will need time to get up to speed, but if they a) already did or b) don’t and so make mistakes, how is that a bad thing for the opposite party?

            1. The Rule’s “magical incantation” are designed to protect against the very stuff we’re discussing. The Rule’s reference to counsel’s “position, if any, on the calendar” is intended to satisfy the court’s concern about scheduling, delay, etc. The “reasons for withdrawal or displacement” (along with an affidavit) are to ensure the client isn’t using the firing of his attorney as a pretext for further delay.

              The only way for “the other side” to have assurances that it will be “bound to the original schedule” is if the withdrawal is not for delay. Compliance with the rule helps provide that assurance.

              “…don’t and so make mistakes, how is that a bad thing for the opposite party?”

              It will be a bad thing for the opposite party if the court denying the extension is reversed on appeal.

      2. As I said, a rule that forced the government to be represented by a specific attorney would be both highly unusual as well as constitutionally suspect. As it happens, my district has a similar rule requiring a showing of good cause before withdrawal (I just checked), and it is most definitely not interpreted to restrict substitution of attorneys by DOJ in this fashion. (That is to say, I have never seen a judge in this district reject a notice from the United States that an attorney for the government is withdrawing from the case for failure to include an explanation.) If anyone with direct knowledge can say that the judges in the Southern District (or even just Judge Furman, for that matter) do routinely apply the rule in this way, then that’s another matter of course.

        1. I’ll bite. Why would it be “constitutionally suspect”?

          Anyway, are you sure governments ask to withdraw counsel very often? I briefly sifted through the 176 opinions citing Local Rule 1.4, and checked all of the cases with governmental parties. My quick search found that 100% of the time (1 for 1!) that a governmental entity sought a motion to withdraw, the court examined it under Rule 1.4. I’m not aware of any decision granting a motion contrary to 1.4, because of any exception. Are you?

          Which district do you practice in, and what is your local rule? I’ll take my own counsel on whether a governmental entity has had a motion to withdraw denied.

        2. SDNY’s Local Rule 1.4 carries a committee note specifying that the rule is not intended to preclude substitution of an attorney by stipulation and order of the court. Perhaps that’s what’s happening in your local jurisdiction?

          You’ve said a bit about what is not done, but you haven’t outlined the “normal” process by which an attorney in your local jurisdiction does arrange for their substitution in a matter that’s pending before a court. Surely there must be some notice or motion required? What does it have to say?

  19. And Hazel, another Obama appointee, this time a black, has called the first “judge’s” decision “well reasoned.” LOL

  20. Post’s post seems to miss what would seem to me to be a very likely reason why the lawyers are asking to withdraw en masse; namely, that Trump fired them from the case. The two who were leaving the government, just decided they were outta there, while the others wanted to keep their government jobs. It wouldn’t be the first time a client–even a client not named Trump–had fired his lawyers after a loss.

    1. It’s certainly possible.

    2. One other possible reason might be –

      I have the vaguest of recollections of reading something about the Pennysylvania Supreme Court gerrymander in which someone put forward the notion – which I may have misunderstood – that Counsel for the Pennsylvania legislature was barred from raising an argument in federal court, than he had argued the other way in State court. Or something like that.

      Maybe there’s a rule preventing existing Counsel from raising a particular argument that would not be binding on new Counsel.

  21. Just bang in another Motion saying :

    “Our client has lost confidence in our ability to represent it competently and cites our recent inability even to get a Motion to Withdraw right.”

    Should do the trick.

    1. But seriously. The fact that they didn’t even offer a reason implies that :

      (a) they thought it was utterly routine and was effectively automatic, ergo Furman’s decision is egregious*, or
      (b) they know the rule and screwed up deliberately to mess up the DoJ’s decsion to get a new team in, or
      (c) they really are incompetent

      * twould be interesting to know how often in the past a Judge in this District has denied a Motion in similar form by the DoJ.

      1. (a) why would their mistaken belief mean that Furman’s decision is egregious? Anyway, I went and looked at all the cites from Rule 1.4, and could not find a single motion in which the DOJ had requested substitution of counsel, except for this one. But, the rule has been cited over a hundred times in cases denying and granting motions to withdraw.

        (b) This is insane. It’s more likely that the mistake was inadvertent.

        (c) Which doesn’t make them incompetent.

    2. It really wouldn’t be “our client”, because it wasn’t the withdrawing attorneys who filed the motion. It was the Assistant and Deputy Attourneys General.

  22. Dumb decision. The reason for needing the court’s permission is to protect the client, who could be left high-and-dry without representation, if attorneys were allowed to withdraw at any time. Here, substitute counsel is ready to take over the case. When I was an AUSA, we simply filed a notice that a new AUSA would be taking over a case along with the new AUSA’s appearance. We never asked the district court for permission to withdraw.

    1. Maybe this is a case where the reason for needing the court’s permission is to protect the plaintiff’s right to due process.

    2. Dumb decision. The reason for needing the court’s permission is to protect the client, who could be left high-and-dry without representation, if attorneys were allowed to withdraw at any time.

      No, that’s not “the reason.” That’s a reason. Another reason, as noted repeatedly above, is to protect the judicial process generally, by preventing gamesmanship and delaying tactics.

      Here, substitute counsel is ready to take over the case. When I was an AUSA, we simply filed a notice that a new AUSA would be taking over a case along with the new AUSA’s appearance. We never asked the district court for permission to withdraw.

      Well, this is a local rule; were you in SDNY/EDNY? But if you’re talking about criminal matters you were handling as AUSA, note that the rule in question here is Local Civ. R. 1.4, with emphasis on the “Civ.”

  23. Hey, this is in the wrong court. SOMEONE find a copy of the Constitution and shove it under this judge’s schnozz…. Art 3 Sec 2 Par 2 plainly states that ALL MATTERS naming a state or several states as parties to the matter can ONLY be taken up, and upon original jurisdiction, by SCOTUS. No inferior court, such as SDNY can take up such matters. This case is named “New York et al vs……..” so right there this SDNY court is beyonid their jurisdiction in taking it up.

    Surprised SCOTUS did not call them on it.

    Besides that, did I miss something along the bumpy road? HOW did New York, and particularly SDNY, ascend the throne to rule over the eitnre nation? Who set them in THAT place?

    1. rt 3 Sec 2 Par 2 plainly states that ALL MATTERS naming a state or several states as parties to the matter can ONLY be taken up, and upon original jurisdiction, by SCOTUS. No inferior court, such as SDNY can take up such matters. This case is named “New York et al vs……..” so right there this SDNY court is beyonid their jurisdiction in taking it up.

      Surprised SCOTUS did not call them on it.

      One possibility is that you’re a genius who noticed something that no actual party, attorney, or judge (including all nine justices of the Supreme Court) noticed.

      Another is that you’ve misread the constitution, finding that the constitution “plainly states” that something can “only” happen even though the word “only” is nowhere to be found.

  24. As the case unfolds, I suspect it will become clear that letting the former attorneys go is going to be conditioned on getting an on-the-record explanation which includes a confession that the Trump administration’s motive is based on outright lies. Those the administration will not be left free to deny—or to obscure with the impression of a complete re-rack. The judge seems to me to be saying he will not likely settle for, “Oh, never mind, let’s start over.”

    1. I suspect you’re right. The Judge would like to hamstring the government’s conduct of its case for reasons entirely unrelated to the specified conditions for withdrawal of Counsel under the NY circuit rules. In short he’s part of the Plaintiff’s team. Not news.

      1. Of the court is just following a local rule. The court’s denial in no way interferes with the government’s choice as to counsel. Four new lawyers have already filed notices of appearance on behalf of the government.

  25. I don’t understand how Prof. Post so clearly missed the bus on this.

    A client (such as the Commerce Dept.) has the absolute right to change lawyers at any time, and doesn’t have to give a reason. The only way such a request would be denied is if the judge thinks it’s a delaying tactic, which is not the case here.

    1. “…has the absolute right to change lawyers at any time…”

      This is not true.

      “…and doesn’t have to give a reason.”

      This is not true.

      “The only way such a request would be denied is if the judge thinks it’s a delaying tactic, which is not the case here.”

      This is not true and, in any event, you wouldn’t know whether it’s a delaying tactic based on the motion to withdraw.

      1. Citation needed.

        1. It seems odd that I have to explain to you that parties do not have an absolute right to change lawyers involving a local rule placing limits on parties’ ability to withdraw counsel. But if you don’t trust local rule 1.4, try FRCP 74. Even under the FRCP, your right to change lawyers at any time is not absolute, but rather is conditioned on new counsel certifying that he will take responsibility for all existing hearing schedules and deadlines.

  26. The idea that the government would do this for “delay” is laughable, as delay favors the plaintiffs. Obviously, at a certain point, arriving soon, the questionnaire will have to be finalized and mailed out, at which point the case will be moot. Just another hostile #Resistance judge thumbing his nose at this administration while yet again irrevocably damaging the reputation of the judiciary as impartial.

  27. This may be too late to get a response, but I’m curious why the DOJ can’t just decide to change the attorneys on a case. I am a public defender and my understanding (which admittedly could be mistaken) is that I am not assigned a case but my boss/office is assigned the case and she then assigns the cases out within the office. It’s our policy (and I believe most PD office policies) to not change attorneys without good reason, but it does happen especially if there is some kind of personal conflict and when that happens the judges never ask questions. Now again this is state criminal court so maybe it’s different in federal court, but I would have thought that the attorney representing the government was actually AG Barr and he is simply assigning within the office what attorney’s work on what cases and so it would be within his discretion to reassign attorneys.

  28. I’ve read stories that the Maryland judge denied the DOJ motion to withdraw, but it seemed to me for practical purposes to grant the motion or at least foreshadow that it will be granted.

    If Judge Furman means to stick to a harder line, I think it would be a mistake. DOJ has a decentish argument that 28 U.S.C. 517 allows it to substitute counsel at its discretion. If correct, that statute would trump a local rule, at least one that had a significant substantive component beyond procedural hoop jumping. DOJ might or might not win that argument, but both the district courts and DOJ have long-standing interests in not pushing too hard on where local rules end and DOJ statutory authority on this and similar points begins.

    And why push the issue here? If Trump isn’t allowed to use the attorneys he wants, it will give him a strong talking point after a loss that he would lack if he were to lose after the courts considered his new arguments on whatever merits they may have based on arguments attorneys he chose put forward.

    I think DOJ is making a mistake if, as I’ve read, it’s using attorneys from OIL. One of the reasons I take cum grano salo guesses that including a Census question on citizenship will significantly suppress responses is that there is a statute guaranteeing confidentiality that the Census Bureau takes very seriously. The attorneys from the Federal Programs Branch, who had been handling the case, would have enforcement of that guarantee as part of their job. (I worked in that branch and its predecessor for several years [1976 to 2017] and recall successfully defending an attempt by a government to use FOIA to breach that confidentiality for reasons that government thought were good ones. The people at Census, I know, take confidentiality seriously. Having the case handled by attorneys from the office that also does immigration litigation may well create an impression (a wrong one, I’m willing to assume, but not an unreasonable one) that there will be leakage from Census to immigration authorities of the citizenship data.

    1. “DOJ has a decentish argument that 28 U.S.C. 517 allows it to substitute counsel at its discretion.”

      No it doesn’t. 28 USC 517 is a permissive (not mandatory) appearance rule, and has nothing to do with a motion to withdraw. The government has already filed notices of appearance for several new lawyers. The district court’s order does not prohibit the government from adding lawyers it wants.

      “…but both the district courts and DOJ have long-standing interests in not pushing too hard on where local rules end and DOJ statutory authority on this and similar points begins.”

      This is nonsense.

      “If Trump isn’t allowed to use the attorneys he wants…”

      Who is preventing the government from using the attorneys they want?

      1. I think we’re in agreement here (and I think the Maryland judge is in the same place). Perhaps I misread Furman’s order as implying otherwise. Specifically:

        You write “The district court’s order does not prohibit the government from adding lawyers it wants” and “Who is preventing the government from using the attorneys they want?”

        Given those points, the government can assign all the work in the case to new attorneys and have one or more of those attorneys do all the arguments and represent the government at depositions and the like. The government could also have only the new attorneys sign papers (it’s not usual, and in fact it’s very rare, for all of the attorneys who have entered an appearance to sign any given paper.) De facto, this gives the government most of what it wants.

        1. The government has already filed several notices of appearance of new counsel, including this afternoon. The denial of the withdrawal isn’t even with prejudice; the court just said they have to follow Rule 1.4 to withdraw, and need to provide assurances that new counsel will submit to jurisdiction for sanctions currently sought against counsel by the plaintiffs, and will appear if summoned for a show cause hearing if necessary. It’s not the craziest thing to hear that a federal judge is not going to let attorneys withdraw from a case with a sanctions motion (against counsel) pending.

  29. Maybe not the craziest thing in the world, but perhaps not a necessary one either. The validity and non-mootness of the sanctions motion do not turn on whether the attorneys are still counsel in the underlying case, do they? (Somewhat of a real question; I think the answer is no, but I haven’t researched it.) And the filing of a sanctions motion against attorneys often creates a conflict of interest with the client, which is an argument in favor of letting them withdraw. In any event, I would think that 90% of what the government wanted was the ability to use new attorneys, even if, in a perfect world, it would also want the appearances of the former team withdrawn. Now that Trump has mooted the merits by deciding to advance in a different direction, perhaps those percentages change, however.

  30. The federal courts DON’T HAVE legitimacy. That you think they do shows how delusional you are… Both sides try to appoint as many partisan hacks as possible. Period.

    In most cases both sets of hacks decide reasonably well, because party affiliation doesn’t matter. But when it does, they tend to support what they’re “supposed” to support.

    I will say though that leftist judges seem to be a lot more willing to shit on legitimate government actions when they don’t politically agree with them. Conservatives do too, but leftists seem to be a LOT more activist tinged.

    At the end of the day the only hope we have for an “impartial” judiciary is hoping that both sides appoint enough hacks to balance out. Anything else is delusional thinking.

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