A Justice Department lawyer dared a federal judge to rule against the Trump administration rather than give the court advance notice.
Democracy Docket founder Marc Elias flagged the exchange in a Tuesday livestream, saying it was “urgent enough that it deserved the alert” his viewers received. The line came from “a trial lawyer for the Department of Justice’s civil division,” Elias said.
“If you want to enjoin us, enjoin us,” the lawyer said, per Elias.
Elias noted that “it is rare for a lawyer, for a party to tell a judge to rule against them.”
At issue are citizenship lists that the Department of Homeland Security plans to “ship to states.” Elias said, “The clear implication is that anyone not on this list is not eligible to vote.” Elias said the lawsuit in Maryland argued, “it would violate the privacy rights of the individuals on this list.”
The judge’s request was modest, according to Elias.
“The judge wasn’t telling the Department of Justice they couldn’t release these lists,” he said. “What the judge was saying in Maryland was just that she wanted a heads-up.”
She asked for “30 days notice,” or immediate word if a release was coming sooner. Elias put the DOJ lawyer’s response in blunt terms.
“Look, your honor, we would rather you rule against us. We would rather you say we can’t release these lists at all than to have to be transparent, than to have to tell you in advance that we are going to release these lists.”
“It’s kind of an incredible thing that the Department of Justice would rather have a lack of transparency and lose the case than have transparency,” Elias said. “I mean, it leads you to kind of wonder what are they hiding? Why are they so concerned?”
His answer was that “the Department of Justice wanted to appeal.” A loss would clear the way for “an immediate appeal,” so “they just wanted to take a loss so that they could appeal this rather than have that transparency.”
The judge refused to “take the bait,” Elias said. “To use her exact words, I’m not doing anything to enjoin you.” Instead, she “issued an order saying that she expects that she will be notified in advance.”
“The Department of Justice is constantly in this position of playing cat and mouse with the federal courts, which is a far cry from what it used to be,” Elias said. “Department of Justice lawyers used to be the most straight laced, the most sort of by the book lawyers.”
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