Trump asserts executive privilege over subpoenaed census docs

President Trump has asserted executive privilege over congressionally subpoenaed documents on the addition of a citizenship question to the 2020 census, the Department of Justice announced Wednesday.

The announcement comes as the House Oversight and Reform Committee is set to vote on whether to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt for failing to comply with congressional subpoenas for the documents.

“By proceeding with today’s vote, you have abandoned the accommodation process with respect to your requests and subpoenas for documents concerning the secretary’s decision to include a citizenship question on the 2020 census,” Assistant Attorney General Stephen Boyd wrote in a letter to House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.).

“The executive branch has engaged in good-faith efforts to satisfy the legislative needs of the committee. Moreover, until the committee’s abrupt decision to seek a contempt resolution, the department was prepared to provide a significant number of additional documents responsive to the committee’s April 2, 2019 subpoena.” 

“Unfortunately, rather than allowing the department to complete its document production, you have chosen to go forward with an unnecessary and premature contempt vote.”

Boyd wrote that Trump has asserted executive privilege over some of the subpoenaed documents, including drafts of a letter sent from the Justice Department to Commerce Department officials requesting that the citizenship question be added to the 2020 census.

Cummings blasted the administration over the assertion, saying that he has been asking for the documents at hand for more than a year and questioning why the departments didn’t send their letters until moments before the vote was scheduled to be held.

“This does not appear to be an effort to engage in good faith negotiations or accommodations,” he said.

The chairman said that he would delay the contempt vote until this afternoon to allow members to review the letters on executive privilege.

The announcement came one day after Boyd sent a separate letter to Cummings, warning that executive privilege would be invoked if the House panel moved forward with the contempt votes for Barr and Ross. The Justice Department official also asked Cummings to delay the vote as Trump weighs whether the documents fall under the scope of executive privilege.

“As I indicated in my letter to you yesterday, this protective assertion ensures the president’s ability to make a final decision whether to assert privilege following a full review of these materials,” Boyd wrote Wednesday.

The Commerce Department on Wednesday also sent Cummings a letter notifying him that Trump has asserted executive privilege over some of the documents subpoenaed from that agency.

“The department regrets that you have made this assertion necessary by your insistence upon scheduling a premature contempt vote,” wrote Charles Rathburn, the acting assistant secretary for legislative and intergovernmental affairs at the Commerce Department.

In a letter sent Tuesday night, Cummings offered to delay the contempt vote if the two agencies handed over unredacted copies of certain documents requested by the lawmakers.

Boyd wrote in the letter Wednesday that the “department has explained to the committee on several occasions that these identified documents consist of attorney-client communications, attorney work product, and deliberative communications, and a federal court has already held many of these documents to be privileged in litigation.”

Wednesday’s move is the latest effort by the White House to assert executive privilege over documents sought by Democrats investigating Trump and his administration.

[The Hill]

White House directs former counsel Don McGahn not to testify before House panel

Former White House counsel Don McGahn is not expected to appear Tuesday before the House Judiciary Committee, defying the committee’s subpoena and setting the stage for another contempt vote to retaliate against the Trump administration for rejecting the demands of Congress.

The White House argues that as a former senior adviser to the President, he is exempt from having to appear before Congress. The Justice Department’s Office of Legal Counsel concluded that former McGahn was not legally required to appear before the House Judiciary Committee and testify about matters related to his official duties as counsel to the President, according to a memo issued Monday and obtained by CNN.

“The Department of Justice has advised me that Mr. McGahn is absolutely immune from compelled congressional testimony with respect to matters occurring during his service as a senior adviser to the President,” White House Counsel Pat Cipollone wrote in a letter to House Judiciary Chairman Jerry Nadler.

White House press secretary Sarah Sanders said in a statement that McGahn “cannot be forced to give such testimony, and Mr. McGahn has been directed to act accordingly.”

“This action has been taken in order to ensure that future Presidents can effectively execute the responsibilities of the Office of the Presidency,” she said.

The White House’s move to keep McGahn off of Capitol Hill is the latest in a slew of current and former Trump administration officials defying subpoenas from House Democrats, who are now grappling with how best to respond to the Trump administration’s blanket resistance to their investigations into the President. 

It marks the second time McGahn has not complied with the Judiciary Committee’s subpoena. He also deferred to the White House in refusing to provide documents that the committee subpoenaed related to McGahn’s special counsel interview preparations, which the White House argued were covered by executive privilege.

Nadler, a Democrat from New York, did not move to hold McGahn in contempt after he would not provide those documents, but he has made clear he is likely to do so if McGahn does not appear Tuesday. The committee is expected to hold the hearing without him, as it did earlier this month for Attorney General William Barr when he did not testify over a dispute about the hearing format.

“We’ve subpoenaed McGahn. We’re expecting him to show up on the 21st, and if he doesn’t he will be subject to contempt, unless he has a court order telling him he can’t, which I don’t think he would get,” Nadler said earlier this month.

McGahn’s testimony is of interest to Democrats in Congress because of the role that he played in special counsel Robert Mueller’s investigation into whether the President obstructed justice. One of the key episodes the special counsel cited in the investigation, which did not exonerate Trump, was when the President told McGahn to fire Mueller and McGahn would not do so.

McGahn is now one of a number of officials who could be held in contempt by Congress.

Earlier this month, Nadler’s committee voted to hold Barr in contempt for refusing to provide the unredacted Mueller report and underlying evidence to Congress. House Intelligence Chairman Adam Schiff says he will take an unspecified “enforcement action” against the Justice Department for not complying with the committee’s subpoena for Mueller’s counterintelligence information. And Treasury Secretary Steve Mnuchin defied the House Ways and Means Committee’s subpoena for President Donald Trump’s tax records last week.

The House is still considering how to handle contempt issues on the floor. One option being considered is to bundle up all of the contempt citations into a single vote to highlight the Trump administration’s stonewalling. Another is to invoke the House’s so-called “inherent contempt” powers to fine or jail officials who are held in contempt without using the court system, although such an action hasn’t been taken in nearly a century.

In its memo Monday, the Justice Department argued that Congress cannot use its inherent contempt powers to punish McGahn for asserting immunity, in what appears to be a preemptive challenge to House Democrats as they contemplate their next steps.

“The constitutional separation of powers bars Congress from exercising its inherent contempt power in the face of presidential assertion of executive privilege,” the memo says. “An attempt to exercise inherent contempt powers in such a circumstance would be without precedent and ‘would immensely burden the President’s ability to assert the privilege and to carry out his constitutional functions.'”

The White House’s move to block McGahn has similarities to President George W. Bush’s efforts to prevent his former White House counsel, Harriet Miers, from testifying. A federal judge in 2008 ruled against the Bush administration.

But that court ruling didn’t stop the Obama administration from making similar arguments. In 2014, the Obama administration’s Office of Legal Counsel wrote a memo that a senior White House adviser subpoenaed by the House Oversight Committee did not have to testify, arguing the President’s immediate advisers had “absolute immunity from congressional compulsion to testify about matters that occur during the course of discharging their official duties.”

Democrats argue the situation with McGahn is different than that case because he has already testified before the special counsel, therefore waiving executive privilege.

But the White House has argued that testifying before Mueller was different because it was a criminal investigation. And on Monday, the Justice Department said that privilege is a separate question than immunity, arguing that the precedent for claiming immunity goes back decades.

“We provide the same answer that the Department of Justice has repeatedly provided for nearly five decades: Congress may not constitutionally compel the President’s senior advisers to testify about their official duties,” DOJ wrote in its memo. “This testimonial immunity is rooted in the constitutional separation of powers and derives from the President’s independence from Congress.”

If Nadler goes to court to try to force McGahn’s testimony, it’s likely to be one of a number of judicial battles pitting congressional Democrats against the Trump administration.

Democrats’ efforts to obtain the full, unredacted Mueller report and Trump’s tax returns are also likely headed to court, and Trump and the Trump Organization have already sued to block subpoenas to Deutsche Bank, Capital One and an accounting firm that has prepared the President’s financial statements.


White House Orders Agencies to Ignore Democrats’ Oversight Requests

The White House is telling federal agencies to blow off Democratic lawmakers’ oversight requests, as Republicans fear the information could be weaponized against President Donald Trump.

At meetings with top officials for various government departments this spring, Uttam Dhillon, a White House lawyer, told agencies not to cooperate with such requests from Democrats, according to Republican sources inside and outside the administration.

It appears to be a formalization of a practice that had already taken hold, as Democrats have complained that their oversight letters requesting information from agencies have gone unanswered since January, and the Trump administration has not yet explained the rationale.

The declaration amounts to a new level of partisanship in Washington, where the president and his administration already feels besieged by media reports and attacks from Democrats. The idea, Republicans said, is to choke off the Democratic congressional minorities from gaining new information that could be used to attack the president.

“You have Republicans leading the House, the Senate and the White House,” a White House official said. “I don’t think you’d have the Democrats responding to every minority member request if they were in the same position.”

A White House spokeswoman said the policy of the administration is “to accommodate the requests of chairmen, regardless of their political party.” There are no Democratic chairmen, as Congress is controlled by Republicans.

The administration also responds to “all non-oversight inquiries, including the Senate’s inquiries for purposes of providing advice and consent on nominees, without regard to the political party of the requester,” the spokeswoman said. “ Multiple agencies have, in fact, responded to minority member requests. No agencies have been directed not to respond to minority requests.”

Republicans said that President Barack Obama’s administration was not always quick to respond to them and sometimes ignored them. However, the Obama White House never ordered agencies to stop cooperating with Republican oversight requests altogether, making the marching orders from Trump’s aides that much more unusual.

“What I do not remember is a blanket request from the Obama administration not to respond to Republicans,” said a former longtime senior Republican staffer.

There are some exceptions to the Trump administration order, particularly from national security agencies, Democrats and Republicans said. Agencies will also comply if a Republican committee chairman joins the Democratic requests, but ranking members’ oversight requests are spurned.

Congressional minorities frequently ask questions of the administration intended to embarrass the president or garner a quick headline. And Democrats have fired off requests they surely knew the administration would not answer, such as asking the White House in March to make visitor logs of Trump Tower and Mar-A-Lago publicly available.

But House and Senate lawmakers also routinely fire off much more obscure requests not intended to generate news coverage. And the Trump administration’s plans to stonewall Democrats is in many ways unprecedented and could lead to a worsening of the gridlock in Washington.

Austin Evers, a former Obama administration lawyer in the State Department who runs a watchdog group called American Oversight, said the Trump administration has instituted a “dramatic change” in policy from Reagan-era congressional standards in which the government provided more information to committee chairman but also consistently engaged in oversight with rank-and-file minority members.

“Instructing agencies not to communicate with members of the minority party will poison the well. It will damage relationships between career staffers at agencies and subject matter experts in Congress,” Evers said. “One of the reasons you respond to letters from the minority party is to explain yourself. It is to put on the record that even accusations that you find unreasonable are not accurate.”

One month ago, Rep. Kathleen Rice (D-N.Y.) and other Democrats sent a letter to the Office of Personnel Management asking for cybersecurity information after it was revealed that millions of people had their identities compromised. The letterasked questions about how cybersecurity officials were hired, and in Rice’s view, it “was not a political letter at all.”

“The answer we got back is, ‘We only speak to the chair people of committees.’ We said, ‘That’s absurd, what are you talking about?’” Rice said in an interview. “I was dumbfounded at their response. I had never gotten anything like that … The administration has installed loyalists at every agency to keep tabs on what information people can get.”

At a House Appropriations hearing in May, Rep. Matt Cartwright (D-Pa.) asked acting General Services Administrator Tim Horne about a briefing House Oversight Committee staffers had received from the GSA, in which they were informed that the “GSA has a new policy only to respond to Republican committee chairmen.”

“The administration has instituted a new policy that matters of oversight need to be requested by the committee chair,” Horne responded.

In February, Sen. Patty Murray (D-Wash.), and Sen. Ron Wyden (D-Ore.) asked for information on changes to from the Health and Human Services Department. They’re still waiting for an answer. In early May, Murray and six other senators asked the president about why Vivek Murthy was dismissed as surgeon general. There was no response, and her staff said those are just a couple of the requests that have gone unanswered.

“It’s no surprise that they would try to prevent Congress from getting the information we need to make sure government is working for the people we represent,” Murray said when asked about the lack of cooperation.

The Senate’s Homeland Security and Government Accountability Committee, the primary investigator in that chamber, has received some responses from the Trump administration but has seen several letters only signed by Democrats ignored. Sen. Claire McCaskill (D-Mo.) wrote Education Secretary Betsy DeVos asking for help addressing the challenges of rural schools and joined with Sen. Tom Carper (D-Del.) to question the security of Trump’s use of a personal cell phone as president. Neither was answered, an aide said.

A senior Democratic aide said that of the Senate Democrats’ 225 oversight letters sent to the Trump administration since January asking for information, the vast majority have received no response.

“When it comes to almost anything we’ve done at a federal agency, very close to 100 percent of those we haven’t heard anything back. And at the White House it’s definitely 100 percent,” said a second senior Democratic aide. “This is rampant all over committee land.”