Trump asserts executive privilege to shield documents on census citizenship question

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JUNE 12, 2019

Donald Trump arrives to speak during the Republican Party of Iowa Annual Dinner at the Ron Pearson Center in West Des Moines, Iowa on Tuesday. – Mandel Ngan/AFP/Getty Images

President Trump asserted executive privilege Wednesday to shield documents about the administration’s decision to add a citizenship question to the 2020 Census, a move meant to try to undercut an expected vote by a House panel to hold his attorney general and commerce secretary in contempt for failing to turn over the materials to lawmakers.

A day earlier, the Justice Department had warned the House Oversight Committee that if it moved toward holding Attorney General William P. Barr in contempt, he would ask Trump to assert privilege to protect the materials. The committee, though, rejected his offer, and was preparing to vote Wednesday on a contempt finding when Trump followed through on Barr’s threat.

The department revealed the assertion in a letter to the committee, which called the contempt vote “unnecessary and premature.”

In the Justice Department’s view, the privilege assertion undercuts the contempt finding because it prevents the attorney general from turning over materials lawmakers had subpoenaed.

With the new development, House Oversight Committee Chairman Elijah E. Cummings (D-Md.) announced that he would delay the contempt vote scheduled for Wednesday morning until later in the day so that members could read the Justice Department letter.

“We must protect the integrity of the census and stand up for Congress’ authority under the Constitution to conduct meaningful oversight,” Cummings said in explaining the need for a contempt vote.

He also questioned why Trump had waited to assert executive privilege on the brink of a contempt vote, given that the subpoenas in question were issued two months ago.

“This begs the question,” Cummings said. “What is being hidden?”

Wednesday’s developments marked a further escalation in the fight between House Democrats and the Republican administration over the investigatory powers of Congress that is playing out in multiple committees and the courts.

If the Oversight Committee contempt resolution is approved by the full House, Cummings would be empowered to ask a federal court to order Barr and Ross to comply with subpoenas that sought documents related to the 2020 Census decision and testimony from a senior Justice Department official.

It’s also possible that Democratic lawmakers and the Justice Department could still work out a deal before any court ruling.

The Justice Department and the Oversight Committee are essentially on the same trajectory as the Department and the House Judiciary Committee were last month, when the Judiciary Committee voted to hold Barr in contempt for failing to turn over materials related to former special counsel Robert S. Mueller III’s probe.

In that case, though, the Judiciary Committee and the Justice Department later worked out a compromise. That contempt process is in “abeyance,” though Democrats have taken steps to make sure they have the ability to sue the department in court.

Democrats say the larger issue is that the White House is almost completely rejecting congressional oversight — stonewalling requests for documents and blocking witnesses from testifying on various subjects. The administration, meanwhile, argues that Democrats are requesting far more materials than they should legally have access to in an attempt to embarrass the president, and they have been unwilling to negotiate.

Democrats have already gone to federal judges in Washington and New York to seek enforcement of subpoenas targeting Trump’s financial records in the possession of private companies. They have scored initial wins in trial courts, but appeals are likely to play out over the coming months.

The Oversight Committee authorized Cummings in April to issue subpoenas to Barr and Ross for documents related to the census decision and for a deposition of John Gore, principal deputy assistant attorney general.

But the Justice Department said it would not comply with the subpoena for Gore to testify. In a letter last week to Barr, Cummings cited the attorney general’s “unprecedented order” to Gore to defy the subpoena as part of the reason for the contempt votes.

Democratic lawmakers have accused the Trump administration of stonewalling their efforts to investigate Ross’s March 2018 decision to add the citizenship question, which the government says it needs to better enforce the Voting Rights Act.

In a statement last week, the Commerce Department noted that Ross has previously testified before the committee and that the department has turned over nearly 14,000 pages of documents to the panel.

Cummings said Wednesday that many of those documents were already publicly available, had heavy redactions or were not responsive to the committee’s request.

Opponents of the citizenship question have argued that it will suppress responses to the survey among immigrant communities, resulting in an undercount in the areas where they live.

The population count from the Decennial Census is used to allocate $800 billion a year in federal funding and determine congressional representation and redistricting.

A key issue in the challenges to the citizenship question is how it came to be added. Ross originally told Congress that his decision to add it came solely in response to a December 2017 request from the Justice Department, but lawsuits later produced emails showing that Ross, who oversees the Census Bureau, had been pushing for the question for months before that.

On Wednesday, Cummings said evidence showed that Ross was pushing for the addition of the question at the urging of the White House.

In March of this year, Democrats on the Oversight Committee grilled Ross about the citizenship extensively, with several asking whether he had lied under oath, and one demanding his resignation.

The committee also met with Gore that month on the matter, but Cummings said he refused to answer more than 150 questions, citing ongoing litigation.

Three federal judges have struck down the census question, saying Ross’s actions in adding it were in violation of the Administrative Procedure Act.

The Supreme Court heard the case April 23. Evidence in the case concluded with oral arguments that day, and it appeared that the conservative majority seemed inclined to agree with the government that the decision to add the question was within the authority of the commerce secretary.

During Wednesday’s Oversight Committee meeting, Rep. Jim Jordan (Ohio), the top Republican on the panel, questioned why Democrats were opposing the addition of a citizenship question.

“Why don’t the Democrats want to know how many citizens are in the country?” he asked.

Last month, new evidence emerged suggesting that the citizenship question was crafted specifically to give an electoral advantage to Republicans and whites.

The evidence was found in the files of the prominent Republican redistricting strategist Thomas Hofeller after his death in August. According to lawyers challenging the question, it reveals that Hofeller “played a significant role in orchestrating the addition of the citizenship question to the 2020 Decennial Census to create a structural electoral advantage for, in his own words, ‘Republicans and Non-Hispanic Whites.’ ”

The lawyers also argued that Trump administration officials purposely obscured Hofeller’s role in court proceedings.

During a closed-door meeting of House Democrats on Wednesday morning, House Speaker Nancy Pelosi (D-Calif.) said Democrats were determined to continue investigating the Trump administration.

“It’s not about Democrats or Republicans, partisanship or anything like that, it’s about patriotism,” Pelosi said, according to a senior Democratic official who requested anonymity to relay remarks that were not public.

During the meeting, several committee chairmen with investigative powers updated the caucus on their work, the Democratic official said.


Courtesy/Source: Washington Post

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