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Census Fight Grows as House Panel Recommends Contempt for Cabinet Members, Trump Asserts Privilege

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WASHINGTON — Congress clashed with President Trump on Wednesday over its efforts to investigate how a citizenship question was added to the 2020 census, as a House committee voted to recommend that two cabinet secretaries be held in contempt of Congress for failing to cooperate with the probe.

Retaliating in advance, the president invoked executive privilege to block disclosure of crucial documents, intensifying his feud with lawmakers over their efforts to hold him and his administration accountable.

The House Oversight and Reform Committee’s vote to recommend holding Attorney General William P. Barr and Commerce Secretary Wilbur Ross was the culmination of a monthslong dispute with the administration over the panel’s efforts to compel testimony from top officials and documents related to the census question. The vote was mostly along party lines, with only one Republican, Representative Justin Amash of Michigan, supporting it.

It was the latest front in an escalating conflict between Mr. Trump and the Democratic-led House over the Constitution’s separation of powers, as lawmakers step up their attempts to use their congressional majority to hold the president accountable and the executive branch moves to defy them. The fight could ultimately result in a lengthy court battle over the ill-defined line between those powers.

At issue on Wednesday was a politically fraught battle over the Oversight Committee’s attempts to investigate the Trump administration’s decision to ask 2020 census respondents whether they are citizens, an issue that has gone all the way to the Supreme Court. The court is expected to decide the legality of the question within weeks.

Democrats have charged that the move is a politically motivated attempt by Republicans to intimidate noncitizens and ultimately depress responses from people of color, leading to less representation for communities that tend to vote for them.

Ahead of the contempt vote, the Justice Department informed Representative Elijah E. Cummings, Democrat of Maryland and the committee chairman, that Mr. Trump had decided to invoke his secrecy powers because Mr. Cummings had “chosen to go forward with an unnecessary and premature contempt vote.”

“We must protect the integrity of the census, and we will stand up for Congress’s authority under the Constitution to conduct meaningful oversight,” Mr. Cummings said, calling the privilege claim “another example of the administration’s blanket defiance of Congress’s constitutionally mandated responsibilities.”

“This begs the question,” Mr. Cummings added: “What is being hidden?”

At the White House, Mr. Trump defended his administration’s push to include a citizenship question in the 2020 census: “When a census goes out, you should find out whether or not — and you have the right to ask whether — somebody is a citizen of the United States,” he said as he met with Poland’s president, Andrzej Duda.

But on the Oversight Committee, Democrats demanded to see the deliberations behind the question. In their census investigation, they said, the administration had provided little more than unresponsive documents and stonewalling of critical deposition requests.

“It is indeed laughable” to say that the administration had cooperated with the panel, said Representative Stephen F. Lynch, Democrat of Massachusetts, brandishing a blacked-out page with no text visible as an example of the heavily redacted material the Commerce Department had sent. “We’ve reached our limit.”

After the vote, Mr. Ross called the Democrats’ action part of a series of “shameless, weekly attacks on this administration.”

In separate letters from the Justice Department and the Department of Commerce, administration officials maintained they had already turned over many materials in response to the subpoena, but that they had to keep certain information confidential to protect the candor of internal and attorney-client deliberations. Still, both officials made it clear that the privilege assertion was in retaliation for the panel’s insistence on issuing contempt citations for Mr. Barr and Mr. Ross.

“The Department regrets that you have made this assertion necessary by your insistence upon scheduling a premature contempt vote,” the letter from the Commerce Department said.

The Justice Department also sent Mr. Cummings a memo to Mr. Trump from Mr. Barr arguing that the executive branch had a “strong interest” in keeping the materials secret to protect its ability to perform its functions, while Congress had not established that obtaining the information was critical to its “legitimate legislative functions.”

[Read the letter to Congress, along with a letter to Mr. Trump from Mr. Barr.]

The standoff was the latest move in an intensifying confrontation between House Democrats and Mr. Trump, who has vowed to fight “all” their oversight investigation subpoenas. It increased the prospects that the fight will end up in a prolonged legal battle.

There are few precedents in that area of the law to provide definitive guideposts about where to draw the line between Congress’ oversight power and the president’s authority to keep information secret because past disputes have largely been resolved through negotiations and accommodations, so the matter never reached the Supreme Court.

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But Mr. Trump’s unabashed vow to fight House Democrats’ efforts to scrutinize his actions and those of his administration across a range of fronts — including seeking disclosure of his hidden tax returns, how some of Mr. Trump’s associates obtained security clearances, and underlying evidence from Robert S. Mueller III’s inquiry — have raised the prospect of litigation that is appealed all the way to the highest court, providing a clearer understanding of the law but running out the clock on Mr. Trump’s term.

The House voted on Tuesday to authorize the Judiciary Committee to file a lawsuit asking a judge to order the executive branch to comply with two subpoenas related to the Mueller investigation, and explicitly empowering committees to file such litigation over other subpoenas without votes of the full House. But to date the House has not voted to hold any Trump official in contempt of Congress.

The fight over the census centers on liberals’ suspicions that asking respondents to say whether they are American citizens could be a deliberate ploy to tilt the every-10-years reapportionment of House seats, shortchanging areas with higher levels of immigrants. They fear that undocumented immigrants or members of their families would be afraid to turn in their questionnaires, resulting in a population undercount.

The Census Bureau has estimated that asking all American residents whether they are citizens may spark a 5.8-percent decline in response rates from noncitizens, which Democrats fear will skew the reapportionment of House seats toward Republicans while depriving states of federal resources. Apportionment of House districts has been based on raw population, not the number of eligible voters.

“I want to know why people like Kris Kobach, with a résumé of voter suppression techniques, have their fingerprints all over the most sensitive census operations that we have as a government,” Representative Alexandria Ocasio-Cortez, Democrat of New York, said as a bitter debate over the contempt citations unfolded between Republicans and Democrats on the panel. “This determines who is here. This determines who has power in the United States.”

In sworn testimony before Congress, Mr. Ross said he had decided to add the question “solely” in response to a Justice Department request in December 2017 for data to help it enforce the Voting Rights Act of 1965. But emails disclosed during the litigation showed that Mr. Ross had begun discussing the addition of the question several months before that, and that Mr. Kobach, the former Kansas secretary of state and architect of strict voter identification laws, had discussed doing so during Mr. Trump’s presidential campaign in 2016. Three federal trial judges have ruled that the evidence in the record demonstrates that Mr. Ross was dissembling.

New evidence from the computer files of a deceased Republican strategist suggests that the administration’s actual reason was to collect information that might allow states to draw voting districts counting only eligible voters rather than all residents, as is the current practice. That would, the strategist wrote, “be advantageous to Republicans and non-Hispanic whites.”

Republicans argued that Democrats were rushing the contempt citations in an attempt to pre-empt the Supreme Court and possibly influence its ruling.

“You are so concerned the Supreme Court’s going to rule on this that you’ve got to get it done before that happens,” said Representative Jim Jordan of Ohio, the ranking Republican on the panel. “Why don’t the Democrats want to know how many citizens are in the country?”

Wednesday’s actions in the Oversight Committee marked the second time this year that a committee has recommended members of Mr. Trump’s cabinet be held in contempt of Congress. The Judiciary Committee sought a contempt resolution against Mr. Barr for his refusal to provide the panel an unredacted version of the Mueller report as well as the evidence that supported the special counsel’s conclusions.

House leaders decided for now against voting to hold Mr. Barr in contempt after the Justice Department began on Monday to share some of the special counsel’s evidence with the committee. For the same reason, it is not yet clear whether the House Judiciary Committee will use its authority to file a lawsuit against him.

In the Oversight Committee’s subpoena fight, members have protested Mr. Barr’s instructions to a subordinate involved in the census to defy a subpoena requiring him to appear for a deposition based on a longstanding House rule that government lawyers are not permitted to accompany a witness in the deposition room.



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