The Justice Department at first resisted a request that it seek to have a citizenship question added to the 2020 census, a newly unredacted 2017 memo to Commerce Secretary Wilbur Ross — who has claimed in congressional testimony the question was added for DOJ purposes — suggests.
The memo was part of a batch of documents filed publicly Monday by the New York attorney general in her lawsuit challenging the question, which stands to diminish the political power of and federal funding for immigrant populations. New York Attorney General Barbara Underwood is requesting that Ross be deposed as part of the lawsuit.
Among the documents in the filing are a previously released email exchange between Ross and his top aide Earl Comstock in which Comstock tells Ross that since the “issue will go to the Supreme court” they “need to be diligent in preparing the administrative record.”
The filing also includes a portion of a deposition of a top Census Bureau expert confirming that he did not believe asking the citizenship question was necessary for the Justice Department to enforce the Voting Rights Act, as the Trump administration has claimed.
The September 2017 memo filed Monday had been previously produced by the Commerce Department, but with redactions that obscured a key line: that a top DOJ lawyer told Comstock that “Justice staff did not want to raise the question given the difficulties Justice was encountering in the press at the time (the whole Comey matter),” per Comstock’s memo. The memo shows Comstock then turned to the Department of Homeland Security, where then-senior counselor Gene Hamilton told him that the DHS “really felt that it was best handled by the Department of Justice,” according to the memo.
The newly released memo reveals another previously redacted detail: that when Comstock then got in touch with the Commerce Department general counsel James Uthmeier, he asked Uthmeier “to look into the legal issues and how Commerce could add the question to the Census itself.”
This version of events contradicts repeated testimony Ross gave to Congress after addition of the citizenship question had been announced. He told the House Ways and Means Committee that the Justice Department “initiated the request for inclusion of the citizenship question.” He said in front of a House Appropriations subcommittee that the Commerce Department was “responding solely to the Department of Justice’s request” and that the Justice Department was “the one who made the request.”
The Justice Department declined to comment. A Commerce spokesperson said in a statement, “Executive branch officials discussing important issues prior to formulating policy is evidence of good government, and the Secretary’s previous testimony before Congress is consistent with that fact.”
“Secretary Ross clearly explained why he chose to reinstate the citizenship question on the 2020 Decennial Census in his March 26, 2018 decision memorandum,” the statement said. “Nothing in the production changes the sound rationale he articulated in March. The documents reinforce that executive branch officials worked together to ensure that Secretary Ross received all of the information necessary to make an informed decision after taking a hard look at the question and considering all facts relevant as shown in the documents provided to the court and the public.”
Also among the documents filed in the New York case Monday was a portion of the deposition given by John Abowd, the Census Bureau’s associate director for research and methodology and its chief scientist.
Previous document production showed that he and other bureau experts had assembled analyses finding that asking the citizenship question would be costly and would affect the census count, and that there are other ways to obtain the citizenship data the Justice Department was ostensibly requesting for Voting Rights Act enforcement.
He confirmed in his August 2018 deposition that adding a citizenship question was not necessary for addressing the Justice Department’s request for data for Voting Rights Act enforcement.
The New York case is scheduled to go to trial Nov. 5.
Read the full batch of documents below:
Update: This story has been updated to include a statement from a Commerce Department spokesperson.