The revelation came on the eve of an expected Oversight Committee vote to hold Barr and Commerce Secretary Wilbur Ross in contempt for failing to turn over documents that lawmakers had subpoenaed, as well as stopping a witness from testifying without a Justice Department lawyer. Assistant Attorney General Stephen E. Boyd wrote that the decision to schedule the vote was “premature” and accused lawmakers of refusing to negotiate with the department to get at least some of what they wanted.
“In the face of this threatened contempt vote, the Attorney General is now compelled to request that the President invoke executive privilege with respect to the materials subject to the subpoena to the Attorney General and the subpoena to the Secretary of the Department of Commerce,” Boyd wrote. “I hereby request that the Committee hold the subpoenas in abeyance and delay any vote on whether to recommend a citation of contempt for noncompliance with the subpoenas, pending the President’s determination of this question.”
Boyd added that if the committee rejected the request, the department would “be forced to reevaluate its current production efforts in ongoing matters.” He requested that the committee respond by 5 p.m. Tuesday and noted that the president had not yet asserted executive privilege to protect the documents from disclosure.
Later Tuesday, Oversight Committee Chairman Elijah E. Cummings (D-Md.) responded in a letter that because the department had made “no commitments to provide any portion of the critical documents required by the subpoena,” he would not postpone the contempt vote.
“The Committee cannot accept these terms,” Cummings wrote, adding that he was still willing to delay if the department turned over certain materials. “The Committee has a responsibility under the Constitution to conduct rigorous oversight of the Census, and we will not delay our efforts due to your ongoing obstruction.”
If lawmakers and the committee do not reach a deal, the Justice Department’s latest posture puts it on a collision course almost identical to that which it faced last month with the House Judiciary Committee.
In that instance, the department had resisted a Judiciary Committee subpoena for access to the unredacted report from special counsel Robert S. Mueller III’s investigation, as well as its underlying materials. At Barr’s request — soon before a contempt vote — Trump asserted executive privilege to protect the documents from disclosure. The committee then voted to hold the attorney general in contempt, though recently, it declared the effort on hold after reaching a deal with the Justice Department to get at least some materials.
In the census case, lawmakers are seeking to understand the administration’s decision to add a citizenship question — which they allege could scare immigrants away from responding to the survey.
The results of the census are used in congressional redistricting and calculating the number of representatives each state gets in Congress. Depressed immigrant response rates could be important and potentially give an advantage to white and Republican voters. States, cities and civil rights groups have sued over the added question, and federal judges have ruled against it — though the dispute is now with the Supreme Court.
Cummings has accused the administration of not complying with a subpoena for documents about the matter, as well as blocking Justice Department official John Gore from testifying. Committee Democrats wrote on Twitter on Tuesday that there was “a broad, coordinated campaign to stonewall investigations across the board — and it is being directed from the top.”
Boyd wrote that the committee had already turned over 17,000 pages and that some of what lawmakers wanted was protected by attorney-client privilege or because it involves internal executive branch deliberations. He also wrote that Gore was only blocked from testifying because lawmakers would not let him do so with the aid of a Justice Department lawyer.
Boyd attached to his letter a recently authored opinion from the Justice Department’s Office of Legal Counsel declaring that Congress may not prohibit government employees from appearing with a lawyer. The opinion noted that any subpoenas requiring employees do so would be “legally invalid” and “not subject to civil or criminal enforcement.”
The opinion, along with a potential executive privilege assertion, are meant to undercut the legitimacy of a contempt finding. Such a finding already would be largely symbolic. Those found in criminal contempt are normally referred to the Justice Department for prosecution; in this instance, the Justice Department would not prosecute itself.
The finding, though, can also be one step in a process that allows lawmakers to go to court and sue for the materials they want. The House voted Tuesday to authorize seeking court enforcement of subpoenas for Barr and former White House counsel Donald McGahn, if necessary.
The committee’s hearing on contempt is scheduled for 10 a.m. Wednesday.