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Justice warns it will ask Trump to invoke executive privilege on census documents

The Department of Justice (DOJ) on Tuesday threatened to ask President TrumpDonald John TrumpMinnesota certifies Biden victory Trump tells allies he plans to pardon Michael Flynn: report Republican John James concedes in Michigan Senate race MORE to invoke executive privilege over materials lawmakers have subpoenaed on the 2020 census citizenship question.

In a letter sent to House Oversight and Reform Committee Chairman Elijah CummingsElijah Eugene Cummings'Kamala' and 'Kobe' surge in popularity among baby names Women of color flex political might Black GOP candidate accuses Behar of wearing black face in heated interview MORE (D-Md.), Assistant Attorney General Stephen Boyd wrote that the administration should take that step if the committee votes Wednesday to hold Attorney General William BarrBill BarrTrump tells allies he plans to pardon Michael Flynn: report Merrick Garland on list to be Biden's attorney general: report DOJ dropping charges against ex-Mexican defense minister MORE and Commerce Secretary Wilbur RossWilbur Louis RossCentral Asia is changing: the Biden administration should pay close attention Census Bureau can't meet Trump's deadline for data on undocumented immigrants: report On The Money: Trump makes a late pitch on the economy | US economy records record GDP gains after historic COVID-19 drop | Pelosi eyes big COVID-19 deal in lame duck MORE in contempt.

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Boyd wrote that in “the face of this threatened contempt vote, the Attorney General is now compelled to request that the president invoke executive privilege” over the materials the panel had subpoenaed from the DOJ and the Commerce Department.

“This request is not itself an assertion of executive privilege,” Boyd wrote in the letter. 

If the committee goes forward with the vote as scheduled on Wednesday, "the Department will be obliged to advise that the President assert executive privilege with respect to certain of the subpoenaed documents, and to make a protective assertion of executive privilege over the remainder of the documents, which undoubtedly include material covered by executive privilege, while the Department continues to review them.”

Boyd said that the department remains “open to further discussions with the committee, and we hope that the committee does not make it necessary for the president to take these steps.”

He asked Cummings to reply to the letter by 5:30 p.m. Tuesday.

Cummings’s office did not immediately respond to a request for comment.

Cummings announced earlier this week that his committee will vote on Wednesday on whether to hold Barr and Ross for failing to comply with congressional subpoenas.

The House Oversight panel is investigating the Trump administration’s efforts to add a citizenship question to the 2020 census.

"Both Secretary Ross and Attorney General Barr are refusing to comply with duly authorized subpoenas from Congress. Because they are in contempt of Congress, on Wednesday, the Committee will vote to move forward to enforce our bipartisan subpoenas," Cummings said in a statement Monday, announcing the votes.

Both the DOJ and the Commerce Department have pushed back against Cummings’s claims, pointing to other materials the agencies have given to the committee and testimony that officials have provided.

“Rather than seriously engage in an accommodation process, the committee has now scheduled a vote to recommend that the attorney general be held in contempt for his purported failure to comply with the committee’s subpoena,” Boyd wrote in the letter Tuesday.

He also pushed back against part of the contempt resolution released by Cummings, which cites Barr for ordering John Gore, a top official in the Justice Department's Civil Rights Division, to defy a congressional subpoena for Gore’s testimony.

The DOJ had wanted a department attorney to be in the room with Gore during the deposition, as he had during similar committee interviews in the past, but committee rules block counsel from departments under investigation to be present during those depositions.

And in a statement Monday, Ross also claimed that his department has provided other documents to Congress on the census citizenship question, and noted that other Commerce officials have agreed to interview with the Oversight and Reform Committee.

“The committee has demonstrated its contempt for the Constitution by its chronic refusal to engage in the constitutionally-mandated accommodation process, which is far more serious than the empty stunt the committee has planned for Wednesday,” Ross said.

The letter was released as the House is poised to pass a resolution authorizing House Judiciary Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerDemocrats accuse GSA of undermining national security by not certifying Biden win Barr sparks DOJ firestorm with election probes memo Marijuana stocks see boost after Harris debate comments MORE (D-N.Y.) to go to court to enforce subpoenas against Barr and former White House counsel Don McGahn in relation to the Mueller report.

The resolution also allows for committee chairs to request permission from top lawmakers to go to court to enforce congressional subpoenas, without having the entire House to vote on a resolution.

In a separate request to Cummings to delay the vote, Rep. Jim JordanJames (Jim) Daniel JordanCheney, top GOP lawmakers ask Trump campaign for proof of election fraud New RSC chairman sees 'Trumpism' as future Sunday shows preview: Biden team gears up for transition, Trump legal battles continue and pandemic rages on MORE (R-Ohio), the ranking member of the Oversight panel, claimed that the chair had failed to give proper notice to members before scheduling the vote in violation of committee rules.

“I write to alert you that in your haste to manufacture a controversy around the citizenship question, you have violated committee rules and called into question the legal sufficiency of your contempt proceeding,” Jordan, who has been highly critical of the census citizenship question probe, wrote in a letter to Cummings.

He pointed to a committee rule that requires three days notice before any business meeting. Cummings announced on Monday that the vote would be held on Wednesday.

“I urge you to reconsider your rushed approach to the very serious matter of contempt of Congress when the committee’s fact-finding remains ongoing,” Jordan wrote. “I hope that your obsessions with the Trump administration and your desperation to score political points will not affect your commitment to operating the committee’s business by the book.”

The Hill has reached out to the Oversight Committee for comment.

—Updated at 5:41 p.m.