The House Oversight Committee voted on party lines Wednesday to hold Commerce Secretary Wilbur Ross and Attorney General William Barr in contempt of Congress for their failure to respond to subpoenas about the addition of a citizenship question to the census.
That action comes a day after the House authorized the Justice Committee to sue Barr and former White House Counsel Don McGahn in federal court, in order to compel them to comply with their subpoenas and testify before the committee regarding the Mueller Report.
Trump officials have withheld so many documents in the two investigations, that deceased Republican operative Thomas Hofeller has been more forthcoming than the current administration.
Two weeks ago, in a shocking turn of events, memos found on Hofeller’s hard drive revealed that the true purpose of the citizenship question was to change congressional districts to benefit “non-Hispanic whites.” That revelation directly contradicted Trump administration claims that the question was intended to help enforce the Voting Rights Act. Indeed, it showed that the intention was the exact opposite.
The Supreme Court is poised to rule on the citizenship question in the next two weeks.
While the Census and Russia scandals emerge from different sources, they’re now more alike than different.
We’re no longer talking about how a citizenship question would decrease Hispanic responses to the Senate, or whether Donald Trump obstructed justice by firing James Comey. We’re talking about Trump administration officials covering up evidence and refusing congressional subpoenas.
In the case of the census, Trump administration officials may have violated the Administrative Procedure Act (APA), and perhaps even the constitution. But in brazenly defying congressional subpoenas, they have flouted the rule of law itself, not to mention Congress’s constitutionally-mandated powers.
In some ways, the cover-up is even worse than the crime.
“We would be committing legislative malpractice if we didn’t do our job,” said Oversight Committee Chair Elijah Cummings at the start of Wednesday’s often rancorous hearings.
Indeed, while several Republican members of the committee tried to make the investigation about something else – “why don’t Democrats want to know how many citizens there are?” asked Ohio congressman Jim Jordan – Democrats continued to hammer on the core of the contempt motion: the defiance of congressional subpoenas.
Rep. William Lacy Clay (D-MO) noted that Ross and Barr refused to answer over 100 questions. And while Republicans pointed out that Ross spent seven hours testifying to Congress, Rep. Stephen Lynch (D-MA) countered that “every answer he gave was designed to produce pain and consume time.”
To be sure, neither action was a full-on vote on contempt of Congress. Wednesday’s vote was only at the committee level, and the House opted not to find Barr and McGahn in contempt of congress, apparently in the hopes that a deal could still be worked out with them.
But underneath the obstruction and contempt are a series of decisions that Republicans would prefer to keep secret.
For example, it’s clear – as we noted last October – that Ross lied under oath to Congress. As Rep. Jamie Raskin (D-MD) pointed out in today’s hearing, Ross said that he only added the citizenship question in December, 2017, after a request from the Department of Justice and a public comment period.
But a letter Ross wrote seven months earlier, in May 2017, said that he had already requested the question be added. That makes the entire public process a sham, and means that Ross’s underlings violated the APA by falsifying the record.
And there are numerous other examples. Ross lied under oath about his meetings with White House advisors Steve Bannon and Kris Kobach, both ardent nationalists. DOJ officials lied about the influence of Hofeller, covered up their conversations about changing census confidentiality rules to share data with ICE, and lied about the chain of events leading up to the proposed change.
Most importantly, it’s now abundantly clear that the proffered rationale for the question – to aid in the enforcement of the Voting Rights Act – is pure pretext. (If nothing else, it’s quite bizarre that officials who have opposed the VRA are now so committed to enforcing it.) The real rationale is right there in the Hofeller memos: to dilute the power of non-white communities by omitting non-citizens from congressional district apportionment.
That would fly in the face of 230 years of American tradition (after all, women were counted before they could vote, and children are still counted today). And it would advantage “non-Hispanic whites.”
The fact that the citizenship question would intimidate Hispanics is just the icing on the cake.
What happens now?
First, despite Republican protestations, it’s unlikely that the contempt vote – even if it passes the full House – will influence the Supreme Court. They are separate procedures, different factual issues, and different legal standards. (Indeed, Contempt of Congress, like Contempt of Court, is so vague that it barely has a standard at all.) While the Court may take official notice of the contempt finding, it has no legal relevance to the case.
Second, the White House’s eleventh-hour attempt to shield the documents in question under the banner of executive privilege is also unlikely to have much impact. The documents were not privileged in the months that Ross and Barr refused to turn them over, which according to the Oversight Committee demonstrated contempt of Congress.
Nor is the privilege claim likely to survive judicial review. The declaration was a transparent attempt to shield embarrassing or incriminating documents from Congress. There’s no plausible rationale for why they should be covered by executive privilege. If anything, the tactic merely begs the question of, in Rep. Cummings’ words, “what are they hiding?”
So the next move lies with the House as a whole.
Perhaps, as in the Mueller case, House leaders could use the contempt resolution as leverage to compel Ross and Barr to comply with the Oversight Committee’s subpoenas.
Or, if such compliance is not forthcoming, the House could find the two in contempt. Doing so is not unprecedented, or even unusual; Attorney General Eric Holder was found in contempt of Congress in 2016 in connection with investigations into DOJ’s “Fast and Furious” program. And Bush White House Counsel Harriet Miers was found in contempt of Congress in 2007 in connection with the administration’s mass firing of U.S. attorneys.
Neither of those votes resulted in the resignations of the officials involved, let alone Presidents Obama or Bush. But they did move forward both of the investigations. Conceivably, if two Trump cabinet secretaries are found in contempt of Congress, the same might happen here.
Who knows, maybe the government will even catch up with the dead guy.