Trump’s Tweets on Census Question Create Havoc for Feds

While it’s not news that President Trump’s freestyle commentary and Twitter use often creates havoc for executive branch officials charged with carrying out the administration’s plans, it’s relatively rare that we get a glimpse behind the curtain that shrouds such moments. That’s what makes the transcript of a telephone conversation between a federal judge and Justice Department lawyers over the administration’s efforts to include a citizenship question on the 2020 Census such interesting reading. 

As everyone following this issue already knows, the Supreme Court in late June blocked the Commerce Department’s plans to add the question to the 2020 count. And on Tuesday, Justice Department lawyers said the administration would drop the question, something confirmed by Commerce Secretary Wilbur Ross: “The Census Bureau has started the process of printing the decennial questionnaires without the question. My focus, and that of the [Census] Bureau and the entire department is to conduct a complete and accurate census.”

But on Wednesday, Trump weighed in on Twitter, calling the reports “FAKE!”: 

The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question.

— Donald J. Trump (@realDonaldTrump) July 3, 2019

That got the attention of Judge George Jarrod Hazel on the U.S. District Court for the District of Maryland, who hastily organized a telephone call with plaintiffs and two Justice Department lawyers—Joshua Gardner and Jody Hunt, who was on vacation at the time—to find out what was going on. 

A full transcript of the conversation reveals confusion all around. Here's a key excerpt:   

Judge Hazel: I don't know how many federal judges have Twitter accounts, but I happen to be one of them, and I follow the President, and so I saw a tweet that directly contradicted the position that Mr. Gardner had shared with me yesterday. . . So now we have a court reporter here. I'm going to ask, frankly, the same question I asked yesterday to Mr. Gardner. Is the Government going to continue efforts to place a citizenship question on the 2020 census?

Joshua Gardner: Your Honor, this is Mr. Gardner. I want to back up just a step and say that I've been with the United States Department of Justice for 16 years, through multiple Administrations, and I've always endeavored to be as candid as possible with the Court. 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. I can tell you that I have confirmed that the Census Bureau is continuing with the process of printing the questionnaire without a citizenship question, and that process has not stopped.

The transcript makes clear that Judge Hazel is struggling to figure out how to deal with a Justice Department that is clearly out of the loop on the Trump administration’s intentions. And that, in a nutshell, is the problem Trump’s Twitter habit creates for executive branch officials on any number of issues, from trade policy to interactions with Iran and North Korea. 

Trump further muddied the waters for the 2020 Census on Friday, when he told reporters he was thinking about issuing an executive order demanding the question be included.

Q: "Are you going to issue an executive order on the census?"

President Trump: "We're thinking about doing that. It's one of the ways, we have four or five ways we can do it. It's one of the ways we're thinking of doing it." pic.twitter.com/vp93GpFKQA

— CSPAN (@cspan) July 5, 2019

Judge Hazel gave the Justice Department until 2 p.m. Friday to clarify the government’s position. Attorney Gardner on Wednesday probably summed up the situation as well as anyone could: “I think the current fluidity of the state of play suggests the status quo is we need to see how these things develop.”