DOJ Makes Executive Privilege Threat In Census Docs Fight With Cummings

on January 29, 2019 in Washington, DC.
Attorney General William Barr arrives on Capitol Hill for a meeting on January 29, 2019. (Photo by Mark Wilson/Getty Images)

On the eve of the House Oversight Committee’s plans to hold a contempt vote for Attorney General Bill Barr, the Justice Department’s war with the committee over handing over certain census citizenship question-related documents escalated with an executive privilege threat.

The Department told Committee Chairman Elijah Cummings (D-MD) in a Tuesday letter that it would request that President Trump assert executive privilege for the documents, as Barr faces the threat of a contempt vote.

If Cummings moved forward with his plans to hold a committee contempt vote Wednesday, Barr would recommend that Trump invoke privilege for the documents, which were subpoenaed by the committee in April.

The letter gave Cummings a 5:30 pm ET deadline to respond on Tuesday.

Among the documents the committee is seeking are drafts of the formal request that the Census Bureau add a citizenship question, written by DOJ official John Gore. The panel also seeks a memo delivered to Gore by a Department of Commerce attorney as he was drafting the request.

The Department says those documents are covered by either deliberative process privilege, attorney-client privilege or by attorney work product component of executive privilege. Its letter pointed to decisions made by courts allowing those documents to be withheld in the litigation over the question.

The legal case over whether the question can stay on the census will be decided by the Supreme Court in the next few weeks.

The Department and the committee are also feuding over getting certain testimony from Gore himself. Gore sat for an voluntary interview earlier this year, but, on the advice of DOJ counsel present with him, declined to answer certain questions. The committee subpoenaed Gore and refused to let the DOJ attorney sit with him for the interview, prompting Barr to instruct Gore that he not participate in the closed-door deposition.

The Department’s Office of Legal Counsel issued an opinion last month that said congressional subpoenas for agency employee testimony are legally invalid if they require the employee to appear without an agency lawyer.

According to the Department’s Tuesday letter, Barr intends to seek an executive privilege assertion not just for the DOJ documents, but also for Commerce Department documents covered by the Committee’s subpoena.

The demand — which had the support of one Republican on the committee, Rep. Justin Amash (R-MN) — sought unredacted versions of emails between Ross and his aides in which he pressured them to find a way to get the question added to the census.

Read the letter here:

Dear Reader,

When we asked recently what makes TPM different from other outlets, readers cited factors like honesty, curiosity, transparency, and our vibrant community. They also pointed to our ability to report on important stories and trends long before they are picked up by mainstream outlets; our ability to contextualize information within the arc of history; and our focus on the real-world consequences of the news.

Our unique approach to reporting and presenting the news, however, wouldn’t be possible without our readers’ support. That’s not just marketing speak, it’s true: our work would literally not be possible without readers deciding to become members. Not only does member support account for more than 80% of TPM’s revenue, our members have helped us build an engaged and informed community. Many of our best stories were born from reader tips and valuable member feedback.

We do what other news outlets can’t or won’t do because our members’ support gives us real independence.

If you enjoy reading TPM and value what we do, become a member today.

Latest Muckraker
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Investigations Desk:
Director of Audience:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: