In an opinion today, Judge Furman granted a motion for sanctions against the Department of Justice for failing to review and produce hundreds of relevant documents in the litigation over when a citizenship question could be included in the 2020 Census (see our previous coverage here). The case centered on whether the inclusion of the citizenship question was a proper exercise of executive authority. The withheld documents provided evidence that the question was included to assist in political redistricting efforts, and that the stated justification (that the question was added to help enforce the Voting Rights Act) was pretextual.
While Judge Furman agreed that the conduct was sanctionable, he noted that the most appropriate remedy – judgment in favor of the plaintiffs – had already occurred:
To be sure, this was not DOJ’s finest hour. At best, DOJ failed to produce more than ten percent of the documents that Defendants were required to produce as part of this litigation. But the Court cannot conclude from the record before it that further investigation into possible sanctionable conduct is warranted in the circumstances of this case. Accordingly, and as an exercise of the Court’s “wide discretion,” the Court will not impose sanctions on Defendants beyond the litigation defeat they have already suffered, or the fee award in which they have acquiesced — except to order that Defendants pay the costs and fees associated with a portion of this motion and its embedded disputes.
Nor will the Court invite further discovery in order to determine exactly who did what and when with respect to the decision to add a citizenship question to the decennial census. Litigation, despite its truth-seeking function, sometimes produces an incomplete or unsatisfying version of the facts. In this case, however, the facts that Plaintiffs were able to prove at trial won them complete relief in this Court and in the Supreme Court of the United States. If there is more to the story, principles of judicial restraint counsel in favor of letting it be uncovered and told somewhere else.