The Trump administration really, really doesn’t want Congress and the public to know any more than they already do about its decision to add a citizenship question to the census:
President Trump asserted executive privilege Wednesday to shield documents about the administration’s decision to add a citizenship question to the 2020 Census, a move meant to try to undercut an expected vote by a House panel to hold his attorney general and commerce secretary in contempt for failing to turn over the materials to lawmakers.
A day earlier, Attorney General William P. Barr had warned the House Oversight Committee that if it moved toward holding him in contempt, he would ask Trump to assert privilege to protect the materials. The committee, though, rejected his offer, and was preparing to vote Wednesday on a contempt finding when Trump followed through on Barr’s threat.
I’m not going to go over all the details in this case (see our previous coverage here, here or here). The short story is that the Trump administration decided to add a citizenship question to the census precisely because it knew that doing so will make immigrants (both documented and not) less likely to answer, which will make the places where they live look smaller.
That, in turn, will draw resources and representation away from those places to places where there are more whites and more Republicans. The undercount could be as high as 4 million people.
The administration sold that plan — to the public, to Congress and to the courts — with a preposterous lie, claiming that it wanted to add the question to the census merely in order to properly enforce the Voting Rights Act. Which is like your 8-year-old telling you he needs to eat more Snickers bars because he’s so concerned about maintaining proper dental health. Enforcing the Voting Rights Act is the last thing the Trump administration wants to do.
We’ve already gotten documents proving that it was a lie, but there are obviously more, which is why the administration is refusing to comply with the congressional subpoena. Which brings us to this bogus executive privilege claim.
To begin with, the fact that Barr asked for the privilege assertion in response to the threat of a contempt vote shows how disingenuous the administration is being. A contempt vote is essentially an expression of the House’s opinion; it doesn’t force the production of the materials the House is after. It has no direct legal consequence.
So Barr essentially said that because the House was being mean to him, in retaliation he’d get the White House to assert executive privilege so that the House couldn’t get the documents it is demanding. This doesn’t end the controversy, because Democrats can sue over the privilege claim. And they ought to win.
Let’s examine that claim on the merits. When you hear “executive privilege,” you probably think of the president shielding his communications with key aides. The idea is that in order to get unvarnished advice when making decisions, he has to be able to have frank discussions without the threat that everything anyone says could eventually be revealed.
That’s one type of executive privilege, called the presidential communications privilege. There’s another, known as the deliberative process privilege, that applies a similar (though more limited) privilege for executive agencies. In this case, that’s the Commerce Department (which oversees the census) and the Justice Department. But courts have found that Congress can overcome the deliberative process privilege if it has a clear need for documents or testimony in order to carry out its oversight responsibilities.
How pressing is that need in this case? The administration is trying to make a significant change to the census, a constitutionally mandated task with sweeping effects on all kinds of policies that the federal government makes. The change the administration wants to make, in the opinion of virtually every expert in the field, would have dramatically harmful consequences. The justification it has offered is an obvious lie; the secretary of commerce has even lied about it under oath.
In short, if there’s a case that demands congressional oversight more than this one, it would be hard to think of what it might be. Which means that the administration’s assertion of privilege is weak to the point of being nonexistent.
On a more basic level, we should be asking: What is the administration trying to hide?
If the story it is telling were true — that it wants to add a citizenship question to properly enforce the Voting Rights Act — then producing the documents would show that. But we all know that’s not what the documents will show.
We know that because emails produced in a lawsuit over the census showed definitively that, in fact, the Commerce Department asked the Justice Department to turn back around and ask the Commerce Department to add the question, which makes no sense until you realize it was trying to create a phony paper trail for the lie it was telling about the Voting Rights Act. (The Justice Department at first resisted, but eventually gave the Commerce Department what it wanted.)
What the administration might really be trying to prevent is not just Congress and the public seeing documents that will expose its lies and bad faith, but the Supreme Court seeing them, too. The court has heard oral arguments in a case challenging the addition of the citizenship question but has yet to issue its ruling. Once the administration has been fully exposed, it will be harder for the five conservative justices to rule in its favor.
Not that they won’t; the odds are that those five justices will do pretty much anything that’s in the interests of the Republican Party, as adding a citizenship question is (indeed, that was the whole point). But if nothing else, the court, and the rest of us, ought to see just how cynical and dishonest the administration has been. If we can’t stop its crimes against democracy, at least we can understand them fully.