2nd Circuit Rejects White House Bid to Delay DOJ Official's Deposition in AG's Census Suit
The official could be an important piece of N.Y. Attorney General Barbara Underwood's case against the citizenship question. He allegedly ghostwrote a letter from the Department of Justice to U.S. Commerce Secretary Wilbur Ross last year asking that the question be added.
October 02, 2018 at 05:29 PM
3 minute read
The original version of this story was published on New York Law Journal
Photo by Maria Dryfhout
The Trump administration may not delay the deposition of a key Department of Justice official pending review by the Supreme Court of a July decision in New York Attorney General Barbara Underwood's lawsuit over a question about citizenship on the 2020 U.S. Census, the U.S. Court of Appeals for the Second Circuit decided Tuesday.
John Gore, the acting assistant attorney general for the DOJ's Civil Rights Division, will be deposed while the Trump administration waits for the Supreme Court to review its petition for a writ of mandamus previously denied by the Second Circuit.
Gore could be an important piece of Underwood's case against the citizenship question. He allegedly ghostwrote a letter from the DOJ to U.S. Commerce Secretary Wilbur Ross last year asking that the question be added. He could speak to what motivated certain members of the Trump administration to add the question, which was announced earlier this year.
The administration is asking the nation's highest court to reconsider a July decision by U.S. District Judge Jesse Furman of the Southern District of New York to allow extra-record discovery in the case. Furman said in the decision that there was “strong” evidence the administration acted in bad faith when deciding to add a question about immigration status to the next census.
The question was added by the Commerce Department, which oversees the U.S. Census Bureau. Neither the Commerce Department nor DOJ returned a request for comment on Tuesday.
Gore's deposition was previously stayed pending a decision by the Second Circuit on the administration's petition for mandamus relief. Attorneys for Underwood's office wrote in a filing last month that the Trump administration had refused to offer possible dates for Gore's deposition while it was stayed. The Second Circuit lifted the stay last week.
Attorneys have not said in filings when Gore's deposition will be or if it's currently scheduled. A spokeswoman for Underwood's office did not return a request for comment Tuesday.
The deposition of Ross, however, has been scheduled for Oct. 11 unless the Supreme Court allows a petition for a writ of mandamus by the Trump administration. Discovery in the case is scheduled to end Oct. 12.
Underwood is leading a coalition of 18 state attorneys general in the lawsuit, which was filed in April shortly after the citizenship question was announced.
The attorneys general have argued that asking about citizenship will decrease turnout for the census in states with large immigrant populations, such as New York. That could have a ripple effect by causing those states to lose representatives in Congress and the Electoral College. The attorneys general also argued that a smaller recorded population could mean less federal funding in areas such as education and health care.
Kate Bailey is the lead attorney for the Trump administration on the case while Senior Trial Counsel Elena Goldstein and Executive Deputy Attorney General Matthew Colangelo are leading the case for New York.
Furman has scheduled a trial in the case for Nov. 5.
READ MORE:
NY AG's Lawsuit Over Census Citizenship Question Set for Trial Over White House's Objection
NY AG May Depose US DOJ Official in Census Suit
US Commerce Secretary Ordered to Sit for Deposition in Census Immigration Status Question Suit
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