Check Your Privilege
As Dems Probe Whether Census Is Being Rigged Against Minorities, Trump Claims Executive Privilege Over Commerce Department Docs
WASHINGTON, June 12, 2019 — President Trump will invoke executive privilege to keep the House Oversight Committee from viewing documents that could shed light on whether Commerce Secretary Wilbur Ross’ decision to include a citizenship question in the 2020 census was motivated by racial or political animus, a Commerce Department official said Wednesday.
In a letter to House Oversight Chairman Elijah Cummings, Commerce Department Legislative Affairs Director Charles Kolo Rathburn said Cummings’ decision to go ahead with a vote to hold Ross in contempt forced Trump’s hand.
“It is disappointing that you have rejected the Department of Commerce’s request to delay the vote of the Committee on Oversight and Reform on a contempt finding against the Secretary this morning. By doing so, you have abandoned the accommodation process with respect to the Committee’s January 8, 2019 request for documents and information and April 2, 2019 subpoena for documents concerning the Secretary’s decision to reinstate a citizenship question on the 2020 Census,” said Rathburn, a political appointee who is performing the duties of the Assistant Secretary [of Commerce] for Legislative Affairs because President Trump has not nominated anyone to fill the Senate-confirmed position.”
“Accordingly, I hereby advise you that the President has asserted executive privilege over the specific subset of the documents identified by the Committee in its June 3, 2019 letter — documents that are clearly protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege.”
Additionally, Rathburn said Trump will use the privilege to withhold all documents the committee had subpoenaed on April 2 as part of its investigation into whether the his administration’s plan to add a citizenship question to the 2020 census was an attempt to reduce the counted population of Democratic-leaning minority groups.
The decennial census, a requirement laid out in Article I, Section II of the Constitution, is required in order to determine how many seats in the House of Representatives — and electoral votes — will be allocated to each state.
Because the Constitution requires the census to count “the whole number of persons in each state,” most experts say a question on citizenship — a subject which the census has not asked about in more than half a century — is unnecessary.
While the Commerce Department says adding the question is necessary — even without performing the statistical testing required by law — to better enforce the Voting Rights Act, experts also say adding such a question would result in fewer responses from Latino households in which some members are undocumented.
After a number of states sued the Trump administration in hopes of blocking Ross from adding a question that could potentially cause them to lose representation in Congress, a district court judge found the Commerce Department to have violated the Administrative Procedure Act by acting in an “arbitrary and capricious” manner when deciding whether to add the question.
The judge’s detailed finding of fact did not address whether the Trump administration’s decision to add the question was motivated by a desire to hurt Democrats or dilute minority representation, and the administration’s appeal is currently before the Supreme Court.
But the case was upended last month after the progressive advocacy group Common Cause obtained a cache of documents from the daughter of a deceased GOP redistricting expert.
Those documents reveal that the expert, Thomas Hofeller, had corresponded with Commerce Department officials and other top Republicans about how the GOP could gain an advantage from the addition of a citizenship question to the census.
As a result, members of Cummings’ committee are hoping to look into whether Ross or other administration officials committed perjury when testifying before Congress or as part of the lawsuit over the citizenship question.
While the President customarily has broad latitude when claiming executive privilege — meant to protect presidential communications so as to give the chief executive the benefit of candid advice — courts have placed some restrictions on its uses.
In 1974, a unanimous Supreme Court held in United States v. Nixon that a president could not use a claim of executive privilege to defy a judicial subpoena.
But one executive privilege expert — University of Virginia law professor Saikrishna Prakash — cautioned that the Nixon ruling does not apply to a Congressional subpoena.
“[The] Nixon [case]…was…an actual prosecution as opposed to Congress being involved, and the court…set aside the question of whether [executive] privilege ought to apply or how it would apply to Congress,” said Prakash, a Senior Fellow at UVA’s Miller Center.
“The [Supreme] Court has never said how the executive privilege applies to Congress if it does apply to Congress, but the lower courts seem to think that it does.”
Prakash predicted that the Trump administration’s invocation of executive privilege will be “the first step in a complicated dance” which will most likely end with some sort of negotiated settlement between the administration and Congress.
But if the White House asks the judicial branch to declare that the President can use executive privilege to block Congressional investigations, Prakash said it’s possible that a court would find that Congress’ interest in determining whether members of the executive branch broke the law to be sufficient enough to pierce the veil the administration hopes to draw around its actions.
“One could always say, ‘we’re worried about the possible, uh, possible, uh, uh, possible crimes by executive branch officials and therefore we need this information.’ If that’s enough to overcome the privilege, you might understand that as saying that, in effect, there is no privilege vis-a-vis Congress.”
“That might very well be the right answer, but it’s not an answer that the courts have given us yet,” he said, adding that House Democrats will most likely use such an argument if they try to enforce their subpoena in court.