Case Document 612-1 Filed 07/03/19 Page 1 of 16

Exhibit 1

Case 1:18-cv-02921-JMF Document 612-1 Filed 07/03/19 Page 2 of 16

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF MARYLAND

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ROBYN KRAVITZ, et al.,
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)
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Plaintiffs,
)
)
vs.
) Case Number:
)
UNITED STATES DEPARTMENT )
OF COMMERCE, et al.,
)
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Defendants.
)
_________________________ )
)
LA UNION DEL PUEBLO
)
ENTERO, et al.,
)
)
Plaintiffs,
)
)
vs.
) Case Number:
)
UNITED STATES DEPARTMENT )
OF COMMERCE, et al.,
)
)
Defendants.
)
_________________________ )

8:18-cv-01041-GJH

8:18-cv-01570-GJH

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TRANSCRIPT OF PROCEEDINGS - TELEPHONE CONFERENCE
BEFORE THE HONORABLE GEORGE JARROD HAZEL
WEDNESDAY, JULY 3, 2019; 3:30 P.M.
GREENBELT, MARYLAND

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Proceedings recorded by mechanical stenography; transcript
produced by computer-aided transcription
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CINDY S. DAVIS, RPR
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FEDERAL OFFICIAL COURT REPORTER
6 5 0 0 C H E R R Y W O O D L A N E, S U I T E 2 0 0
G R E E N B E L T, M D
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FOR THE KRAVITZ PLAINTIFFS:
Shankar Duraiswamy, Esquire
Benjamin Duke, Esquire
COVINGTON & BURLING, LLP
1 City Center
850 Tenth Street, N.W.
Washington, D.C. 20001

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FOR THE LUPE PLAINTIFFS:
Denise Hulett, Esquire
MALDEF
1016 16th Street, N.W., Suite 100
Washington, D.C. 20036

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FOR THE DEFENDANTS:
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Joshua Gardner, Special Counsel
Stephen Ehrlich, Special Counsel
UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, D.C. 20005

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P R O C E E D I N G S

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THE COURT:

Good afternoon.

MS. HULETT:

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THE COURT:

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MR. DURAISWAMY:

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THE COURT:

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MR. DUKE:

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MR. GARDNER:

Denise Hulett.
For the Kravitz plaintiffs?
Shankar Duraiswamy.

And for the Government?
And Ben Duke.
For the Government, Josh Gardner and

Jody Hunt, Assistant Attorney General for the Civil Division.

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Who do I have for the

LUPE plaintiffs?

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THE COURT:

Mr. Gardner, I know you're on vacation,

and so I hated to interrupt that.

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Couple things.

One, we do have a court reporter here.

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It's Ms. Davis, who knows each of your voices well at this

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point.

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I'm sure you all will accommodate that.

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your voices at this point, so it's probably not necessary to

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identify yourselves every time you speak.

She does ask that Mr. Duraiswamy speak slowly, and so
She does know each of

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So I guess the reason I wanted to have this call,

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obviously, we had our call -- I guess it was yesterday; feels

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like a while ago, but I think it was yesterday -- and then this

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morning I saw a tweet that got my attention.

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many federal judges have Twitter accounts, but I happen to be

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one of them, and I follow the President, and so I saw a tweet

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that directly contradicted the position that Mr. Gardner had

I don't know how

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shared with me yesterday.

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I'll say in that regard I had felt somewhat bad about not

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just immediately accepting Mr. Gardner's representation and

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sort of taking some measures to try to pin it down.

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even indicated yesterday, and I'll indicate again today, that

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Mr. Gardner and every government attorney who has appeared in

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this case has been nothing but professional and candid with the

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Court.

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sort of any reflection on him or what I think of his candor.

I think I

And so my attempts to pin him down yesterday were not

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But then the tweet that I saw, which I suspect we all know the

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tweet I'm referring to, then caused me to think I hadn't gone

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far enough in terms of pinning the Government down on where

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things stand.

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So now we have a court reporter here.

I'm going to ask,

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frankly, the same question I asked yesterday to Mr. Gardner.

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Is the Government going to continue efforts to place a

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citizenship question on the 2020 census?

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MR. GARDNER:

Your Honor, this is Mr. Gardner.

I

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want to back up just a step and say that I've been with the

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United States Department of Justice for 16 years, through

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multiple Administrations, and I've always endeavored to be as

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candid as possible with the Court.

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yesterday was absolutely my best understanding of the state of

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affairs and, apparently, also the Commerce Department's state

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of affairs, because you probably saw Secretary Ross issued a

What I told the Court

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statement very similar to what I told the Court.
The tweet this morning was the first I had heard of the

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President's position on this issue, just like the plaintiffs

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and Your Honor.

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that means at this juncture other than what the President has

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tweeted.

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absolute best to figure out what's going on.

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I do not have a deeper understanding of what

But, obviously, as you can imagine, I am doing my

I can tell you that I have confirmed that the Census
Bureau is continuing with the process of printing the

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questionnaire without a citizenship question, and that process

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has not stopped.

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THE COURT:

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plaintiffs' counsel.

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you have any comments.

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All right.

I'll hear from either

Mr. Duraiswamy, I'll start with you if

MR. DURAISWAMY:

Your Honor, I think it underscores,

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obviously, the need for a stipulated order, as we talked about

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yesterday, that makes clear not only that the Government is

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printing the questionnaire for the 2020 census without a

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citizenship question but that there will be no further effort

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to inquire about citizenship status as part of the 2020 census

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in any manner.

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prepared to send to the Government along those lines.

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We prepared a draft stipulated order that we're

I think it also suggests that we may need a further

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provision of that order that makes clear that the defendants

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will not communicate to the public anything to the contrary

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suggesting that the 2020 census is inquiring about citizenship

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status.

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any such misinformation that comes from government officials.

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So we are working on a stipulated order to that effect.

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And, further, that they will counter, publicly counter

Given Mr. Gardner's own uncertainty, it's not clear to me

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if the Government is saying we will continue with the process

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of working out the stipulated order, that they're prepared to

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move forward with that, or if they're saying that they need to

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revisit this.

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THE COURT:

Let me ask before I get Ms. Hulett's

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perspective.

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requirement that they not say anything to the contrary, what

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would be the authority, what would be the basis for me to issue

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that order?

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in an order they agree to.

But let's assume for the sake of

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argument that they're not.

What would be the basis for me to

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order them not to -- and I assume you're including the

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President of the United States in what you're suggesting -- not

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to make any statements contrary to the order that they're not

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going to include the question?

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As to your second point that there should be some

Obviously, if they're willing to stipulate to that

MR. DURAISWAMY:

Well, we have included in our

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complaint, I think both in the Kravitz complaint and in the

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LUPE complaint, as part of our request for relief not just an

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injunction but any such relief as is necessary in the interest

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of justice.

Given the way in which this has developed and

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given the inconsistent statements that we're hearing from the

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Justice Department and the Commerce Department, on the one

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hand, and from the President on the other hand, we think that

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to effectuate the relief that we've sought, which is an

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injunction barring the inquiring of citizenship status on the

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2020 census, this is the kind of relief that's necessary.

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it's appropriate and within the power of the Court.

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MS. HULETT:

And

Your Honor, if I may add something.

This is Denise Hulett.

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THE COURT:

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MS. HULETT:

Sure.
The President's tweet has some of the

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same effects that the addition of the question would in the

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first place and some of the same effects on the 18-month battle

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that was just waged over the citizenship question.

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the immigrant communities to believe that the Government is

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still after information that could endanger them.

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that to the interview that the President did, sharing that his

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reason for wanting the citizenship question on the form was so

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that the Government could distinguish between citizens and

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illegal aliens and how nonsensical that is, it has the effect

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of leading the public to believe that the Census is not only

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after that information but is willing to violate some of the

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provinces of protection that our plaintiff organizations have

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been trying to reassure communities about.

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It leaves

If you add

So we strongly believe that we're going to need some

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affirmative commitment, whether it's through a stipulation or

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by order of this Court, an affirmative commitment from the

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Government to counter misinformation wherever in the Government

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that it comes from, a commitment that they will respond quickly

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and comprehensively to that kind of misinformation.

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Today is a good example.

There was no response from the

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Commerce Department, that I know of, to counteract the position

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that was expressed either in a tweet or in an interview, and

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that's going to cause the same kinds of harm and injury and --

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THE COURT:
cut you off.

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Let me -- I'm sorry.

I apologize.

MS. HULETT:

I didn't mean to

Go ahead.

I was just going to add that if the

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Government is not prepared at this point to say that they will

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be negotiating quickly over this, we think that we would have

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to make a request to reinstate our preliminary injunction

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motion and to move forward with a scheduling order on discovery

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because the injury at this point is ongoing.

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THE COURT:

Let me make a couple of comments, and

then I'll turn back to Mr. Gardner to get his thoughts.

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I assume, although maybe I'm wrong about this, that the

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parties aren't suggesting I can enjoin the President of the

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United States from tweeting things.

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that.

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some concern.

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Maybe you are suggesting

But I will say my initial reaction to that is to have

But what I perhaps am taking you to suggest is that there

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could be an order -- and I'm not saying I agree to this; I'm

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just trying to tee up the issue for Mr. Gardner to respond --

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that there could be a mechanism by which I order -- and, again,

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I'm not saying I'm inclined to do this -- the Census Bureau or

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the Department of Commerce to take whatever steps are necessary

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to counteract any such message, which, again, I this is an odd

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place for the judiciary to be.

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But I'll at least hear what Mr. Gardner's initial take
is, understanding you're still unclear yourself, it seems, on

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the primary question as to whether or not any of this is going

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to end up being necessary.

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initial response to those secondary suggestions from

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plaintiffs.

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MR. GARDNER:

I am at least curious as to your

Sure, Your Honor.

To back up, this is

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a very fluid situation which we are trying to get our arms

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around and, obviously, once we get more information, we will

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communicate that immediately to the Court and the parties.

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I do want to address a preliminary issue though, and that

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is that the current status quo is that plaintiffs are fully

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protected.

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was the basis for the inclusion of the citizenship question.

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So that final-agency action has been enjoined, and there is no

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current additional final-agency action out there to enjoin or

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to even challenge.

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The Supreme Court vacated the March decision which

I recognize this is a fluid situation and perhaps that

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might change, but we're just not there yet, and I can't

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possibly predict at this juncture what exactly is going to

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happen.

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operating for the past week, while it may be inconvenient for

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the Court, and I apologize about that, is to maintain

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consistent contact so we can keep updating the Court and the

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parties as to the state of affairs.

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I think the process by which we have been sort of

But as of now, the basis for the citizenship question is
firmly enjoined, vacated, and does not exist.

If there is a

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different decision in the future, plaintiffs obviously would

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have every opportunity to file an amended complaint, file a PI

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or whatever other processes they think are appropriate.

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think the current fluidity of the state of play suggests the

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status quo is we need to see how these things develop.

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But I

And at that juncture, Your Honor, if you have additional
questions, I can turn it over to AAG Hunt.
MR. HUNT:

Your Honor, this is Joseph Hunt, Assistant

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Attorney General for the Civil Division.

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my thoughts to what Mr. Gardner just said.

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THE COURT:

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MR. HUNT:

If I might just add

Sure.
We at the Department of Justice have been

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instructed to examine whether there is a path forward,

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consistent with the Supreme Court's decision, that would allow

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us to include the citizenship question on the census.

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there may be a legally available path under the Supreme Court's

We think

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decision.

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to see whether that's viable and possible.

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We're examining that, looking at near-term options

And so to the extent we can identify an option for that

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to work, if we continue to examine the decision and believe

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that we have a viable path forward to that work, our current

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plan would be to file a motion in the Supreme Court to request

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instructions on remand to govern further proceedings in order

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to simplify and expedite the remaining litigation and provide

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clarity to the process going forward.

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So as Mr. Gardner said, it's very fluid at present

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because we are still examining the Supreme Court's decision to

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see if that option is still available to us.

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THE COURT:

That's helpful to understand, and I

appreciate you adding that.
Here's where we are.

And then if either side has a

different view, I'll hear that.
By Friday at 2 p.m. I want one of two things.

I either

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want a stipulation, as we've been discussing, indicating that

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the citizenship question will not appear on the census, or I

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want a proposed scheduling order for how we're going forward on

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the equal protection claim that's been remanded to this Court.

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I want one of those two things by Friday at two o'clock.

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So I would expect that the parties will have to meet and

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confer sometime earlier on Friday to determine which of those

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things you're submitting to me by Friday at two o'clock.

But I

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want one of those two things by Friday at two o'clock.
If, in the case of the scheduling order, the parties are

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not able to come to an agreement as to what it should look

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like, you can submit to me competing options, and we'll have a

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call that afternoon.

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that afternoon where the Court will mike a final decision on

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how we're proceeding.

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Friday at 2 p.m., the equal protection claim in this case is

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moving forward.

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I'll be here Friday.

We'll have a call

But we will, if this is not resolved by

Any questions as to that?
MR. GARDNER:

Your Honor, this is Mr. Gardner.

The

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one thing I would request is, given that tomorrow is the Fourth

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of July and the difficulty in assembling people from all over

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the place, is it possible that we could do this on Monday?

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THE COURT:

No.

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MR. GARDNER:

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THE COURT:

And again -- okay.

No.

Because timing is an issue.

Timing

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is an issue, and we've lost a week at this point.

And this

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isn't anything against anybody on this call.

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different things, and it's becoming increasingly frustrating.

I've been told

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If you were Facebook and an attorney for Facebook told me

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one thing, and then I read a press release from Mark Zuckerberg

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telling me something else, I would be demanding that Mark

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Zuckerberg appear in court with you the next time because I

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would be saying I don't think you speak for your client

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anymore.

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I think I'm actually being really reasonable here and

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just saying I need a final answer by Friday at 2 p.m. or we're

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going forward.

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week.

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from me that I would get it done, the discovery done in 45

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days, a hearing, and then a decision, and they sent it back to

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me with that promise having been made.

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days already with the back and forth, which, again, I don't

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Because we've wasted a

The Fourth Circuit sent this back to me with a promise

And we've lost seven

blame anybody on this call for, but that's where we are.

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That's where we are.

So Friday, 2 p.m., we're going forward or we're resolving
it.

That's where we are.

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MR. DUKE:

Your Honor, this is Ben Duke for the

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Kravitz plaintiffs.

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Government's repeated representations, including to the United

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States Supreme Court, which the Supreme Court relied on, that

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June 30th was an absolute deadline and that they needed to have

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this finalized and to move forward as of that date?

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what we've now heard from the defendants is that that wasn't

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true, that they now think that they can even dither over the

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July 4th weekend and ask for more time to examine this and

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possibly make a further motion to the Supreme Court for

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instructions on how to eventually undercut what the Supreme

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Court has already decided.

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the positions that they've been taking.

Could we ask what happened to the

Because

It is completely inconsistent with

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THE COURT:

I understand that.

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I suspect we're not

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going to get a useful answer to that question, so I'm not sure

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that I really want to wade into that at this juncture.

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Any other questions?

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MR. GARDNER:

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Nothing from the Government, Your

Honor.

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THE COURT:

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MR. DURAISWAMY:

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Duraiswamy.

Plaintiffs?
Your Honor, this is Shankar

The only thing I would add is that, consistent

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with Mr. Gardner's prior communications with us, the permanent

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injunction from this Court remains in effect, the injunction

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permanently preventing the Government from adding a citizenship

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question to the 2020 census.

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point.

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THE COURT:

So we agree at least on that

And I meant to respond to that.

I made a

note and then overlooked it.

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I don't think there is currently a need to litigate the

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motion for preliminary injunction because there is at least

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one, if not more, injunction in place.

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that.

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So I do agree with

So I'll look forward to getting something Friday at 2

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p.m., and then, if necessary, we'll get on the phone after

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that.

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(The telephonic conference ended at 3:50 p.m.)

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CERTIFICATE OF OFFICIAL REPORTER

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I, Cindy S. Davis, Federal Official Court Reporter in and

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for the United States District Court for the Southern District

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of Maryland, do hereby certify that I reported, by machine

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shorthand and computer-aided transcription, in my official

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capacity the motions hearing proceedings had in the case of

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Kravitz, et al., versus United States Department of Commerce,

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et al., case numbers 8:18-cv-01041-GJH and 8:18-cv-01570-GJH,

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in said court on July 3, 2019.
I further certify that the foregoing 14 pages constitute

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the official transcript of said proceedings, as taken from my

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electronic notes to the best of my ability.

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In witness whereof, I have hereto subscribed my name this
third day of July 2019.

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C in d y S. Da v i s

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_____________________________________
CINDY S. DAVIS, RPR
FEDERAL OFFICIAL COURT REPORTER

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