One of the battles that landed Donald Trump's administration in court was over his demand that a Census question ask about the citizenship status of those living in homes around the country. The concern is that Trump would use that information to proceed with his promise to deport "probably 2 million" — and possibly 3 million — people who are in the country illegally. There was also a fear that documented immigrants would be too scared to fill out the census.
Writing in his book "Holding the Line," former US Attorney Geoffrey Berman, from the Southern District of New York, recalled the court case and the quick way in which the main Justice Department took over the investigation, replacing SDNY in the State of New York et al. vs. the United States Department of Commerce.
It put the SDNY in an awkward position, Berman wrote, because Trump became their client despite the SDNY's full understanding that the question was purely politically motivated.
Jeffrey Oestericher should have been the person to handle the case, as the chief of the civil division. Instead, the DOJ interfered again. The SDNY fought to stay involved, though Berman admits washing their hands of it would have probably "saved us some headaches."
The first issue that was heard by the US District Court was whether the DOJ or the Census Department asked for the citizenship question to be included on the census. As with any case, the government was required to hand over records to the plaintiffs. The lawyers then have to sift through searches to find all of the information.
"It’s certainly not unusual for attorneys to be surprised by some of what they find—or for it to sometimes make their advocacy more difficult," Berman explains. "It’s less common for them to come across material that just blows their case up. The review uncovered a 2017 email exchange between Secretary of Commerce Wilbur Ross and a top deputy that showed the citizenship question was first proposed by political staff and not—as the government claimed—the Department of Justice."
"I am mystified why nothing [has] been done in response to my months old request that we include the citizenship question,” Ross said in the email to senior adviser Earl Comstock, in May 2017," the book continues. Comstock reassures Ross that he'll handle it.
“We need to work with Justice to get them to request that citizenship be added back as a census question, and we have the court cases to illustrate that DOJ has a legitimate need for the question to be included," he wrote.
Another set of emails proved Ross spoke with Steve Bannon, known for being an anti-immigration hawk, about the census question. Bannon organized a call between Ross and Kris Kobach, the disgraced former attorney general of Kansas that Trump tasked with finding 3 million illegal votes. Kobach never found them or any other kind of rampant voter fraud. Trump simply didn't win the popular vote.
Kobach had wanted the citizenship question for decades because it could reduce the number of congressional districts in states like California. He'd pitched the idea to Trump in 2017. According to the email he sent Ross, Kobach said, the lack of a citizenship question on the census “leads to the problem that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes.”
The key piece at this point of the scandal is that Ross testified under oath to Congress that the Justice Department “initiated the request for inclusion of the citizenship question.” It was a lie. Ross was asked if anyone from the White House ever discussed such a question. Ross answered: “I am not aware of any such.” It was another lie under oath, and the emails proved it.
Berman wrote that when Oestericher saw the emails he called it "major," and indicated it would significantly undermine the Commerce Department. It made it bad for the government, but things got much worse.
Berman wrote that "attorneys in civil cases do not, of course, just bundle up discovery material and send it over to opposing counsel. They first take a close look to determine what may be privileged or confidential information, and therefore can be properly withheld. What they cannot do is conceal information just because it hurts their case."
But that's exactly what the Justice Department did. The SDNY sent their discovery documents to the DOJ and at the last minute 70 pages suddenly disappeared.
The "documents were pulled by political appointees in Washington, among them a Deputy Associate Attorney General and two Deputy Assistant Attorneys General," he said. "Our attorneys were told by this trio that the emails in question did not fall under the required preliminary discovery because they were subject to what’s called the 'deliberative process privilege'—which means, essentially, that they were part of the in-office narrative of how an agency reached a decision."
Berman didn't agree, explaining that they've used that in cases before, but in this one it was applicable. What's more, concealing documents that couldn't be more relevant would end badly for the DOJ.
Both Barr and Wilbur Ross were held in criminal contempt of Congress for withholding the documents and concealing information in the case. It was then, of course, referred to the Justice Department, which Barr ran, so no grand jury was called and no case was filed.
"Holding the Line" is available on sale now and Raw Story has full coverage here.