DOJ rejects Oversight subpoena unless agency lawyer is permitted to attend

The Department of Justice said Tuesday that an agency official is rejecting a congressional subpoena to testify on the Trump administration’s addition of a citizenship question to the 2020 census unless he is allowed to have a DOJ attorney with him.

The House Oversight and Reform Committee last week authorized and served three subpoenas over the citizenship question, including one demanding that John Gore, a deputy assistant attorney general in DOJ’s civil rights division, sit for a deposition.

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But DOJ claimed in a letter sent Tuesday to Committee Chairman Elijah CummingsElijah Eugene CummingsTrump request for Ukrainian 'favor' tops notable quote list Impeachment can't wait Adam Schiff's star rises with impeachment hearings MORE (D-Md.) and obtained by The Hill that the panel is trying to stop Gore from testifying with a department attorney present, although he was permitted to have one from the agency in the past.

Assistant Attorney General for legislative affairs Stephen Boyd argues in the letter that while DOJ acknowledges the importance of the congressional investigation, “barring Department representatives from Committee depositions undermines, rather than enhances, such oversight and unconstitutionally encroaches on fundamental Executive Branch interests.”

“As a result, the Attorney General has determined that Mr. Gore will not appear at the April 11 deposition unless a Department representative may accompany him,” the letter reads.

Cummings said in a statement to The Hill that "Gore is required to report for his deposition pursuant to a subpoena that was duly authorized by the Oversight Committee on a bipartisan basis."
 
"He may bring personal counsel to represent him, but the Committee’s rules—which have been in place for more than a decade under both Republican and Democratic Chairmen—prohibit Department of Justice lawyers from attending," the chairman said. "Officials from the Department of Justice already know this, and they certainly should not instruct this witness—or any witness—to violate the Committee’s order.” 

Rules for the Oversight Committee during both this and the previous session of Congress state that witnesses during a deposition are allowed to have an attorney with them. However, the rules do not allow for that attorney to be from an agency under investigation — in this case, the Justice Department.

Gore previously testified before the committee with a department attorney last May, shortly after legal challenges to the census question were filed.  

A DOJ official told The Hill that Gore also sat for a deposition in October while being represented by an agency counsel. Gore was also represented by a DOJ lawyer while sitting for a voluntary transcribed interview with the committee on March 7, the official confirmed.

The Commerce Department announced last year that it would add a citizenship question to the 2020 census, at the request of the Justice Department, which said it would help enforce the Voting Rights Act. Gore would have been involved in the decision to ask for the citizenship question.

The Trump administration’s announcement that it would add the question to the survey was met almost immediately with a wave of legal challenges, arguing that requiring individuals to provide their citizenship status would cause some to avoid the survey altogether and cause an undercount of the population.

Census data are used to determine federal funding, and critics behind the lawsuits allege that the question will lead to some states and program receiving fewer funds than they should.

Three federal judges have blocked the question from being added to the census, and the Supreme Court will hear arguments over the question later this month.

Boyd argues in the letter that because the legal challenges to the question are ongoing, Gore would be unable to answer certain questions that he was also unable to answer during his previous interview with the committee.

He said that means the committee could rely on transcripts of Gore’s past interviews, rather than having him sit down for a new deposition.

And Boyd wrote that the DOJ “strongly object[s]” to not having agency counsel present during Gore’s deposition, arguing that the committee “now seeks to undermine the Executive Branch’s ability to protect its interests” by excluding DOJ attorneys.

The Oversight Committee also subpoenaed for Attorney General William BarrWilliam Pelham BarrHillicon Valley: Apple, Facebook defend encryption during Senate grilling | Tech legal shield makes it into trade deal | Impeachment controversy over phone records heats up | TikTok chief cancels Capitol Hill meetings Giuliani: Trump asked me to brief Justice Department, GOP lawmakers on Ukraine trip Apple, Facebook defend encryption during Senate grilling MORE to provide a memo to Gore from Department of Commerce General Counsel James Uthmeier and any communications on the census question between DOJ, the White House, the Republican National Committee, the Trump campaign or members of Congress.

It’s unclear if DOJ will comply with that subpoena.

A third subpoena seeks unredacted internal communications and documents on the census question from Commerce Secretary Wilbur RossWilbur Louis RossPelosi gets standing ovation at Kennedy Center Honors Space race is on: US can't afford congressional inaction in this critical economic sector Trump escalates fight over tax on tech giants MORE.

Ross and other administration officials have defended the use of the question, citing the DOJ’s request in helping to enforce voting laws and noting that it has been used in the past.

But critics point to the question not being included on the survey since 1950 in arguing that its addition is not normal. They also claim that the Commerce Department did not do its due diligence on the question and arbitrarily added it to the survey.