On Wednesday, the William Barr-led Department of Justice announced that it was blocking an effort by the House Oversight and Reform Committee to obtain census information from Commerce Secretary Wilbur Ross through what has now become standard practice in the Trump White House: declaring that all the information is covered by executive privilege. Following that action, the Oversight Committee voted to hold both Barr and Ross in contempt of Congress.
The key information being sought is how Ross came to place a question about citizenship on the 2020 census. That question, which seems designed to drive down census participation, could have an impact on exactly what the “national enumeration” of the census is intended to do, which is to provide for fair representation in the House. Which makes the reasoning behind including the question of direct and intense interest to Congress. But Ross has refused to provide critical documents discussing the question and its addition to census forms.
Barr’s action highlights the fact that it’s not just in the Russia investigation, or even in examinations of Trump’s finances, that the White House is denying Congress’ oversight role. It’s even in unrelated matters that are of the most vital interest to Congress.
Most assumptions have been that what Barr, Ross, and Trump don’t want coming out are records that directly show that the citizenship question was recommended by right-wing think tanks as a way to reduce participation by specific groups of both citizens and noncitizens in the census. But the denial of Congress’ role in anything that government does has become force of habit. Since Democrats took control of the House in January, the only testimony or documents that the Trump White House has agreed to provide are those that were included as part of a deal to withhold a contempt vote on Barr by the Judiciary Committee.
And no matter what the topic, the way in which Trump is using executive privilege must be challenged in court, immediately and effectively. Because the way it’s being applied at this point means that Trump has a literal get-out-of-jail-free card for any possible issue. And it means that congressional oversight isn’t even a theoretical possibility.
The general understanding of executive privilege has been that it applies only to direct communication between the president and top advisers. And the understanding is that it applies only when directly claimed in connection with specific documents or testimony.
But neither of those understandings has held up under Trump. Not only has Barr insisted that Trump can apply executive privilege to documents that were never intended for his desk—such as the Mueller report and the census documents—but it has also been the position of the Trump White House from day one that Trump doesn’t even have to claim privilege to claim the benefits of privilege. In testimony going back into the first months of 2017, members of Trump’s staff have refused to answer questions, or provide documents, on the basis that they might be subject to executive privilege.
That is, Trump hasn’t actually exerted privilege over the information, but he could do so at some future date. So, in the meantime, he enjoys the benefits of having that information withheld from the public while not actually claiming privilege—which would be a move that could be fought in court.
It’s this action, and not the refusal to obey congressional subpoenas, that has had the greatest direct impact over the last two years and continues to provide the greatest barrier to Congress in its oversight duties. This amorphous, go-anywhere, for-any-reason view of executive privilege is a genuine wall. So long as it stands, Congress can’t get a complete answer on any topic. And the members know it.
Congress has been reluctant to take up the matter of privilege in court because it’s been afraid of the ruling. What if a court did allow that Trump could exert privilege over members of his transition team? What if a court ruled that Trump could exclude the public from not just information coming to his office, but from conversations between underlings of underlings working out the details of matters that determine regulations and processes? A ruling on these matters might leave Congress with less authority to ask in the future.
It doesn’t matter. Because so long as Trump is allowed the benefit of his maybe-I-will privilege, and especially so long as Barr is able to spread a cloak of privilege over topics as broad as the Mueller report and the census debate, Congress has no power to collect any information. Congress is only concerned about endangering a power that it cannot currently exert. In other words, it has absolutely nothing to lose.
And case law also suggests that it can have a reasonable expectation of winning in every one of these cases. Trump should not be able to exert privilege over communications that were gathered by the special counsel as the direct result of legislative action. Trump should not be able to exert privilege over documents showing how the numbers that determine the allocation of numbers of representatives to the states are to be decided. Trump should not be able to gain the benefits of privilege on the theory that he maybe, possibly, could raise that flag if he felt like it.
All of these actions demand immediate, forceful attention in court. Or Congress really should just go home and stop pretending.