US. Department of Justice
Office of Legislative Asairs
(Office ofthe Assistant Attorney General Washingion, D.C 20530
Sune 11,2019
‘The Honorable
Chairman
Committee on Oversight and Reform
US. House of Representatives
‘Washington, DC. 20515
JME. Cummings
Dear Chairman Cummings:
‘Since the first request by Chairman ofthe Committee on Oversight and Reform
Committee") to the Department of lustice ("Department") on February 12, 2019 for documents
concerning the Secretary of Commerce’s decision to include a citizenship question on the 2020
(Census, the Department has made significant efforts towards accommodation. After the
Committee served the Attomey General with a subpoena on April 2, 2019 for much ofthe same
‘material, the Department continued to engage in good-faith efforts to satisty the Committee’s
legislative needs, To date, dhe Department has made eight document submissions totaling more
than 17,000 pages. In addltion, the Principal Deputy Assistant Attomey General for the
Department's Civil Rights Division, John Gore, voluntarily appeared fora transcribed interview
to answer the Commitee’s questions, as did a Counselor to the Attorney General. The
Department's production, moreover, remains ongoing, as it works to process the significant
number of documents identified as responsive to item 2 of the schedule for the Commitee’s
subpoena
Rather than seriously engage in an aecommodation proces, the Committe now has
Schedule a vote to recommend that the Attorney General beheld in contempt for his purported
failure to comply with the Commite’s subpoena, and for his instruction to Mr. Gore not to
appear fra deposition unless agency counsel is present, A fo the production of subpoenaed
‘materials, the Department has epeatedly informed the Committe that a inited subset ofthe
documents ia proested fom dzclonur by the dliberaive process, altorey aient
‘communications, or attorney work product components of executive privilege. These are the
king of materials that the Executive Branch regularly and appropriately withholds in connection
with oversight matter, because the disclosure of such information would have a signiicant
chilling effet on future deliberations among senior exceutive branch oficial, and would
‘compromise the confidentiality on which the Executive Braneh'sattorey-lient relationships
depend, Inthe pening civil tigation regarding the citizenship question, a federal district court
‘ns altcady eld that many of these same mutras are protected by privilege. See Stale of New
Yorky. US. Dep't of Commerce, 345 F. Supp. 34 444, 451 n.7 (SDNY. 2018)‘The Honorable Flijah F. Cummings
Page Two
‘With respect ro Mr, Gore's deposition testimony, the Attomey General instructed Mr.
Gore not to appear only aftr the Committee insisted on baering counsel from the deposition. As
the Department explained on April 9, 2019, the Committee's effort to bar Depactment counsel
‘would unconsttutionally infringe upon the prerogatives ofthe Executive Branch. See Letter for
Elijah E. Cummings, Chairman, Committee on Oversight and Reform. U.S. House of
Representatives at 2-3 (Apr. 9,2019). Because the Committee sought information from Mr.
Gore relating to his official duties, the Department explained that ageney counsel must be
present to ensure appropriate limits to Mr. Gore's questioning and to protect against the
disclosure of privilege information, See id. I enclose an opinion from the Department's Office
‘of Legal Counsel explaining in greater detail why the Committee may not constitutionally
‘compel an executive branch witness to testify about potentially privileged matters while
depriving the witness ofthe assistance of agency counsel. See Attempted Exclusion of Agency
Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. (May 23, 2019).
‘The Department has previously offered, and we offer again, to make Mr. Gare available forthe
requested deposition if the Committee permits agency counsel to accompany him.
‘The Committee has failed to abide by the constitutionally mandated accommodation,
process by declining to negotiate over the scope ofthe subpoenaed materials orto recognize
legitimate executive branch interests, as well as by its premature devision to schedule @ contempt
vote. In the face ofthis threatened contempt vote, the Attomey General is now compelled 10
‘request thatthe President invoke executive privilege with espect tothe materials subject tothe
subpoena to the Attorney General andthe subpoena tothe Secretary of the Department of
‘Commerce. [hereby request thatthe Committee hold the subpoenas in abeyance and delay any
vote on whether to recommend a citation of contempt for noncompliance withthe subpoenas,
pending the President's determination of this question.
‘This request is consistent with long-standing policy of the Executive Branch about
‘congressional requests for information implicating executive privilege. See President Ronald
‘Reagan, Memorandum for the Heads of Exeeutive Departments and Agencies, Procedures
Governing Responses to Congressional Requests for Information 2 (Nov. 4, 1982) (directing
‘executive agencies to “request the Congressional body to hold its request for the information in
abeyance” inorder to “protect the privilege pending a Presidential decision”). Regrettably, the
Committee has made this request necessary by threatening to abandon the constitutionally
mandated aecommedaion provese hetwren the branches nd to hold vote an eater
tomorrow morning.
‘This request isnot itself an assertion of executive privilege, I'he Committee decides (0
proceed in spite ofthis request, however, the Department will be obliged to advise thatthe
President assert executive privilege with respect to certain of the subpoenaed documents, and 10
make a protective assertion of executive privilege over the remainder ofthe documents, whieh
undoubiedly include materia covered by executive privilege, while the Department continues to‘The Honorable Elijah E. Cummings
Page Three
review them, See Letter for the President from Williams P. Barr, Attomey General at 1-2 (May
8, 2019); Protective Assertion of Executive Privilege Regarding White House Counsel's Ofice
Documents, 20 Op. O.1.C. 1 (1996). Should the Committee take the unnecessary and
counterpraductve step of proceeding witha contempt vote, the Department will be forced to
reevaluate is current production efforts in ongoing matters. We remain open to further
discussions with the Committee and we hope thatthe Committee does not make it necessary for
the President to take these steps. A reply to this letter is requested before 5:30 pam. today.
Enclosure
cc; The Honorable Jim Jordan
‘Ranking Member