WASHINGTON — President Donald Trump has invoked executive privilege for the second time in his presidency to stop House Democrats from getting documents from his administration, the Justice Department announced Wednesday.
This time, Trump's privilege assertion shields documents related to a controversial decision by Commerce Secretary Wilbur Ross to add a citizenship question to the 2020 census. The issue is currently before the Supreme Court. Democrats, civil rights groups, and other opponents argue that including the question would scare off noncitizens and immigrant communities from completing the form and was intended to suppress their representation in Congress and in the federal budget-making process. The administration contends it would help the Justice Department enforce voting rights, and that there is value in knowing the size of the population of US citizens.
The House Oversight Committee had subpoenaed documents from both the Justice Department and the Commerce Department related to the citizenship question. The Justice Department produced more than 17,000 pages of documents — Democrats said many were already public or nonresponsive — but said it was withholding materials that reflected privileged work by attorneys and internal deliberations.
The notice of Trump's assertion of executive privilege came just as the House Oversight Committee prepared to vote Wednesday on a resolution recommending that Ross and Attorney General Bill Barr be held in contempt for failing to comply with its subpoenas. Trump invoked two types of executive privilege — both a final assertion over one category of documents and a "protective" assertion over other documents while the administration decides if it wants to formally invoke the privilege.
The committee voted 24-15 to approve the contempt resolution against Barr and Ross on Wednesday afternoon. One Republican, Rep. Justin Amash, joined with Democrats in voting to approve the resolution.
Justice Department spokesperson Kerri Kupec said in a statement following the vote that the committee's action "undermines Congress's credibility with the American people."
"The Department of Justice has tirelessly worked for months to accommodate the Committee’s requests for information, including producing over 17,000 pages of documents and making senior Department officials available for questioning. Despite the Committee’s political games, the Department will remain focused on its critical work safeguarding the American people and upholding the rule of law," Kupec said.
The contempt resolution also stemmed from the committee's fight with the Justice Department over a demand for deposition testimony from a key DOJ official involved in the citizenship question issue, John Gore. The department has refused to make Gore available unless a DOJ lawyer can accompany him. House Democrats contend that goes against committee practice and have refused to agree to those terms.
On Tuesday the Justice Department released a copy of a May 23 opinion from the Office of Legal Counsel concluding that a requirement that agency officials testify about potentially privileged information without agency counsel would hurt the president's ability to control privileged information.
The US Supreme Court is poised to rule by the end of the month on whether the Trump administration can go forward with adding a citizenship question to the 2020 census. The Constitution requires a count every 10 years but doesn't specify that it include only citizens; the main census survey last asked about citizenship in 1950.
House Oversight Committee Republicans on Wednesday accused Democrats of trying to influence the Supreme Court in pushing for the release of documents now. Democrats countered that they had legitimate questions about the origin of the question, especially since the release last month of materials found on the hard drive of a dead Republican strategist that raised new questions about the motives behind the proposal to add a citizenship question.
The House Oversight Committee's vote to hold Barr and Ross in contempt marks the second time Democrats have made such a move. In May the House Judiciary Committee voted to hold Barr in contempt for refusing to turn over files related to special counsel Robert Mueller's investigation, as well as certain unredacted portions of Mueller's final report.
The May contempt vote has yet to go before the full House for a final vote, however. This week, Judiciary Committee Chair Jerry Nadler announced that he'd reached an agreement with the Justice Department to get access to "key evidence" from Mueller's investigation, and would delay the contempt process.
Notwithstanding that deal, Democrats are still preparing for the possibility that they'll need to go to court to enforce subpoenas related to the Mueller investigation. On Tuesday the House voted to approve a resolution that gives Nadler the go-ahead to sue over subpoenas of Barr and former White House counsel Don McGahn; the resolution also empowers committee chairs to sue to enforce subpoenas going forward once they have approval from the House's Bipartisan Legal Advisory Group (as opposed to needing to wait for approval from the full House, too).
Updated with comment from the Justice Department.
Updated with additional information about the contempt vote on Wednesday.