The Hazards of Being “Pretextual”


The Rule of Law Still Matters

The Rule of Law Still Matters

It appears that a stake has finally been driven through the heart of Trump’s and the Republican’s attempt to sabotage the U.S. census. After losing in the U.S. Supreme Court, Trump has flopped around like a gaffed halibut, trying to find a way to discourage non-citizens from participating that could withstand review by those troublemakers in the federal courts. He’s failed. That’s all to the good, although the fuss and fury may make cautious refugees loathe to answer any questions.

Basically, the courts concluded Trump and his Secretary of Commerce, Wilbur Ross, were lying about their motivation in insisting upon the question. As SCOTUS Chief Justice Roberts put it:

And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the [Voting Rights Act] enforcement rationale—the sole stated reason—seems to have been contrived.

That’s very kind, actually. The record showed that Secretary Ross made a lot of increasingly desperate attempts to find a reason for the citizenship question, and finally persuaded the feckless former Attorney General Jeff Sessions to say the questions would help with the enforcement of the Voting Rights Act. As if Sessions had any intention of enforcing the Voting Rights Act.

Can we be clear about this: the U.S. Supreme Court found that the the Secretary of Commerce persuaded the Attorney General to lie in court, in order to benefit the Republican Party.

The three judge panel at the Second Circuit Court of Appeals was even more straightforward: they called the “justification” for the question “pretextual.” That’s lawyer-speak for lying, for pretending something is true when you know damned well it isn’t. The Second Circuit said Wilbur Ross was lying.

And the thing about having a court find that you have lied is that it is admissible in other cases where the Administration’s credibility and the credibility of its arguments are at issue. Folks challenging a Trump decision can now argue, “Look, these guys are liars. Look what the court found in the census case. There’s no reason to believe them here, either.” It’s a forceful argument, because lying to or misleading the courts makes it that much more difficult for the courts to do their job, which is to get to the truth. The courts get downright cranky when they catch someone lying to them.

Trump gets away with an astonishing, appalling number of lies. More than 11,000, according to the Factchecker at the Washington Post. In any normal political climate, that kind of record would get a president hounded out of office by his own political party. Self-evidently, we’re not living in a normal political climate. But maybe getting caught in this set ot lies will have repercussions in the dozens of other pending cases.

Lies that are offered in evidence in court still have consequences. Fitfully, painfully slowly, and despite Trump’s best efforts to pack the courts. And the proof is that the U.S. Census won’t have a citizenship question.