The House Oversight Committee filed a lawsuit Tuesday seeking enforcement of subpoenas it issued to Commerce Secretary Wilbur Ross and Attorney General Bill Barr as part of the committee’s investigation into the census citizenship question.
The House previously voted to hold Ross and Barr in contempt for their defiance of the subpoenas, which request certain documents and communications from the failed effort to add the question.
Tuesday’s 84-page complaint said that, despite a Supreme Court decision that effectively blocked the administration from adding the question, the committee’s interest is in determining whether “legislation may be necessary to amend the census process or to provide additional safeguards in light of Defendants’ conduct.”
“In particular, the Committee must understand the extent of maladministration by government officials and the scope and nature of procedural defects relating to the Census, including with respect to the Commerce Department’s process for soliciting and evaluating input regarding the citizenship question, the Commerce Department’s efforts to affect the accuracy of the enumeration, and improper political influences on the Census,” the complaint said.
The lawsuit went on to lay out several key facts — many of them contradicting the administration’s initial justifications for adding the question — that were uncovered in the legal challenges to the question and in the committee’s investigation into the effort so far. The administration, including in testimony to Congress, claimed that the question was needed to produce data for Voting Rights Act enforcement. The Supreme Court earlier this year ruled that that justification was bogus.
“From an oversight perspective, the Committee’s investigation has revealed that the Executive Branch has made misleading statements to Congress and the American people,” the complaint said.
The lawsuit is focused on 11 specific documents that the committee subpoenaed from the push to add the question to the census. The administration has turned over many of the subpoenaed documents, but with heavy redactions.
Throughout the committee’s efforts to obtain the unredacted documents, the administration has invoked claims of “deliberative process privilege” and “attorney-client privilege.” President Trump also invoked “a protective assertion of executive privilege” over the documents, as the committee prepared to hold Barr and Ross in contempt for their compliance.
Tuesday’s lawsuit pointed out that Ross had previously claimed in congressional testimony that the White House did not take part in the process of adding the question.
“In light of that representation, there are only two possibilities: Either Secretary Ross’s statement is accurate, in which case the constitutionally-based Presidential communications privilege does not apply, or Secretary Ross’s statement is inaccurate, in which case the Secretary deliberately provided yet more false information to Congress and the privilege is vitiated,” the lawsuit
Among the documents the committee is seeking are the various drafts of the formal 2017 request for the question that touted the VRA enforcement rationale. As then-DOJ official John Gore was working on writing that request, he met with an outside advisor to the administration, Mark Neuman, who in turn was consulting with Republican gerrymandering operatives about a draft of the request.
The drafts of the request would clarify the connection between Gore’s efforts and the proposed draft ghostwritten by the now-deceased operative, Thomas Hofeller, the lawsuit argued.
The committee is also seeking a memo written by a Commerce Secretary lawyer, James Uthmeier, and delivered to Gore by hand as he was writing the formal request. The memo had with it a handwritten note that has also been withheld.
“The Memorandum’s delivery method — by hand and accompanied by a handwritten note, with the goal of avoiding any digital fingerprints — suggests a contemporaneous effort to conceal the Uthmeier Memorandum’s contents,” the lawsuit said.
In a statement, a spokesperson for the Commerce Department said the lawsuit “lacks merit” and that the Department “has cooperated in good faith with the Committee.”
“After their first document request in January of 2019 on the Secretary’s decision to reinstate the citizenship question to the 2020 Census, the Department made over 2,000 documents available to the Committee, and submitted hundreds of pages of additional documents since the Supreme Court’s decision,” the spokesperson said. “At the same time, the Department allowed current and former officials to sit with representatives of the Committee for transcribed interviews, while the Secretary himself testified voluntarily in front of the full Committee for seven hours. Together, they answered well over a thousand questions.”
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