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Executive Privilege

House Census Case

Major Issue:  Whether a House committee may secure judicial enforcement of subpoenas to the U.S. Department of Justice and U.S. Department of Commerce seeking certain documents related to the 2020 census. 

Case Status:  Awaiting a district court opinion.

Case Description:  On November 26, 2019, the House Committee on Oversight & Reform filed suit in D.C. federal district court to enforce subpoenas requiring the U.S. Department of Justice (“DOJ”) and U.S. Department of Commerce to produce certain information related to an Executive Branch decision, later withdrawn, to add a question about U.S. citizenship to the 2020 census.  Five months earlier in June 2019, in a separate case challenging the rationale for adding the citizenship question to the census, the Supreme Court ruled that the agency’s stated reason for taking the action seemed “to have been contrived” and remanded the matter to the Commerce Department.  Dep’t of Commerce v. New York, 139 S. Ct. 2551, 588 U.S. __ (2019).  The Commerce Department then decided against including the question in the 2020 census.  

In response to ongoing efforts by the House committee to obtain information related to the decision-making surrounding the U.S. citizenship question, both DOJ and the Commerce Department produced some documents, but refused to produce others, including 11 key documents with significant redactions.  At the direction of the president, the agencies asserted executive privilege over all withheld information responsive to the subpoenas.  On July 17, 2019, the House voted to hold both Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt of Congress.  The House committee, asserting a need to complete its oversight investigation of the Executive Branch actions and evaluate legislation designed to protect the integrity of the 2020 census,  filed this lawsuit to obtain the withheld information.  

Procedural Posture:  D.C. District Judge Randolph D. Moss was assigned to Case No. 19-cv-3557.  On Dec. 12, 2019, DOJ asked the district court to stay the case pending a D.C. Circuit Court of Appeals decision in another matter, but the district court declined.  Both the House committee and DOJ filed motions for summary judgment.  DOJ also moved to dismiss the case for lack of standing.  On Jan. 30, 2020, the district court held oral argument, but has yet to issue an opinion. 

On Nov. 26, 2019, the House Committee on Oversight & Reform filed suit in D.C. district court to enforce  subpoena requiring the U.S. Department of Justice (“DOJ”) and U.S. Department of Commerce to produce certain documents related to an Executive Branch decision, later withdrawn, to include a question about U.S. citizenship in the 2020 census.  On Dec. 12, DOJ asked the district court to stay the case pending a decision by the D.C. Circuit Court of Appeals in a separate suit filed by the House Judiciary Committee to compel testimony from former White House Counsel Donald McGahn.  Committee on the Judiciary, United States House of Representatives v McGahn, No. 19-2379 (KBJ), 2019 WL 6312011 (D.D.C. Nov. 25, 2019).  On Dec. 13, 2019, the district court held oral argument in the case and denied the stay.  On Dec. 17, 2019, the House committee filed a motion for summary judgment.  On Jan. 14, 2020, DOJ filed a motion for summary judgment or, in the alternative, to dismiss the case for lack of standing.  On Jan. 30, 2020, the district court held oral argument on both parties’ motions, but has yet to issue an opinion in the case.

No proceedings to date.

No proceedings to date.

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