By Tara Law
July 4, 2019

President Donald Trump’s Wednesday morning announcement that he still aimed to add a citizenship question to the 2020 census, despite a serious Supreme Court setback, appears to coincide with the Department of Justice being “instructed” to find a way to include it.

In a tweet, the President contradicted his own Department of Commerce and the Department of Justice, which had confirmed on Tuesday night that the Census will not include a question about citizenship. Trump wrote that “news reports” announcing the exclusion of the question were “FAKE” and that the question is “absolutely moving forward.”

The President’s tweet appears to have confused even Joshua Gardner, special counsel for the United States Department of Justice. Gardner admitted in Federal Court in Maryland on Wednesday that he had previously testified that the census wouldn’t include the question because he wasn’t aware of the President’s plans.

“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,” Gardner said, according to a transcript of the proceedings. “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.”

The Trump administration has made a serious push to include a question about citizenship status in the census, arguing that the provision would make it easier to enforce the voting rights act. The Supreme Court appeared to deal a major blow to the Trump administration’s plans last week, when it ruled that the Justice Department’s reasons for including the question seemed “contrived.”

Advocates, including experts from the Census Bureau itself, have warned that including the question could lead to an undercount of immigrant families, especially Hispanic people, who tend to vote for Democrats.

Secretary of Commerce Wilbur Ross announced Tuesday that he respected the Court’s decision, and that the Census Bureau had started printing the Census without the question.

However, the Department of Justice has now been “instructed” to see if there’s a way for the question to go forward, Joseph Hunt, Assistant Attorney General for the Civil Division, said during the Wednesday proceedings.

The judge overseeing the court, Hon. George J. Hazel, ordered the U.S. government to come up with a final decision on the citizenship question by Friday afternoon.

Hazel said that while he respected Gardner’s integrity, he would expect any other lawyer to understand the official position of the people he represented.

“If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from Mark Zuckerberg telling me something else, I would be demanding that Mark Zuckerberg appear in court with you the next time because I would be saying I don’t think you speak for your client anymore,” Hazel said.

The back-and-forth about the citizenship question also displeased the plaintiffs in the case.

Plaintiff Denise Hulett asked Hazel to ensure that the U.S. government doesn’t further confuse the American people about the citizenship question.

“This administration’s flagrant disregard of court orders is appalling, and will result in the same kind of misinformation that leads our communities to be reluctant to participate in the census, at a time when the Census Bureau should be actively encouraging everyone’s full participation,” she said in a later statement. “The government has an obligation to counter the President’s outlandish statements.”

Write to Tara Law at tara.law@time.com.

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