(Slip Opinion)
Assertion of Executive Privilege Over Deliberative
Materials Regarding Inclusion of Citizenship
Question on 2020 Census Questionnaire
The President may assert executive privilege over “priority documents” relating to the
Secretary of Commerce’s decision to include a citizenship question on the 2020 de-
cennial census questionnaire that the House Committee on Oversight and Reform has
demanded as responsive to its subpoenas. The “priority documents” all involve pre-
decisional deliberative material, attorney-client communications, or attorney work
product.
The President may make a protective assertion of executive privilege over the remaining
subpoenaed documents to give time for the Departments of Commerce and Justice to
determine whether any remaining documents may be subject to privilege.
June 11, 2019
THE PRESIDENT
THE WHITE HOUSE
Dear Mr. President,
The Secretary of Commerce and I are requesting that you assert execu-
tive privilege with respect to documents responsive to a subpoena served
on the Department of Justice and a subpoena served on the Department of
Commerce by the Committee on Oversight and Reform of the United
States House of Representatives (“Committee”) on April 2, 2019. The
subpoenas relate to the Committee’s investigation into the Secretary’s
decision to include a citizenship question on the 2020 decennial census
questionnaire. The Committee has scheduled a meeting for June 12, 2019,
to vote on a resolution holding the Secretary and me in contempt of Con-
gress for failing to comply with the subpoenas. This letter formally re-
quests you assert executive privilege and explains the legal basis for such
an assertion.1
I.
On December 12, 2017, the General Counsel of the Justice Manage-
ment Division sent a letter to the U.S. Census Bureau requesting the
1 The Secretary of Commerce has made a parallel request. See Letter for the President
from Wilbur Ross, Secretary, Department of Commerce (June 11, 2019).
1
43 Op. O.L.C. __ (June 11, 2019)
reinstatement of a question regarding citizenship on the 2020 decennial
census questionnaire. The letter stated that citizenship data is critical to
the Department of Justice’s enforcement of the Voting Rights Act and its
protections against racial discrimination in voting. The Department ex-
plained that, to enforce the Act’s requirements, it needs a reliable calcula-
tion of the citizen voting-age population in localities where voting rights
violations are alleged or suspected, and that the census is the most appro-
priate vehicle for collecting that data. Approximately three months later,
on March 26, 2018, the Secretary announced that he was reinstating a
citizenship question on the census in response to the Department’s re-
quest.
On January 8, 2019, the Committee sent a letter to the Secretary re-
questing an extremely broad set of documents regarding the Secretary’s
decision to include the citizenship question on the census questionnaire.
On February 12, 2019, the Committee sent a letter to the Acting Attorney
General requesting similar documents regarding the Department of Jus-
tice’s role in that decision. The Departments promptly began producing
thousands of responsive documents to the Committee on a rolling basis,
and made multiple witnesses available for interviews.
Despite these efforts, the Committee issued separate subpoenas to the
Secretary and me on April 2, 2019, seeking many of the documents re-
quested in the Committee’s January 8 and February 12 letters. The sub-
poena issued to the Secretary requested eleven specific documents, in-
cluding e-mails between the Secretary and his close advisers, as well as
e-mails and documents produced by or sent to an attorney in the Depart-
ment of Commerce’s Office of General Counsel. The subpoena also
requested all communications from January 20, 2017 through December
12, 2017 among Department of Commerce officials or between such
officials and outside entities concerning the citizenship question. The
subpoena issued to me requested a memorandum and note to the Acting
Assistant Attorney General for the Department of Justice’s Civil Rights
Division from the same Department of Commerce attorney regarding the
citizenship question. The subpoena also requested all documents and
communications from January 20, 2017 through December 12, 2017
within the Department of Justice and with outside entities regarding the
Department of Justice’s request to include the citizenship question.
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Executive Privilege Over Deliberative Materials Regarding Citizenship Question
The Department of Justice and the Department of Commerce have
made substantial efforts to accommodate the Committee’s oversight
interests concerning the citizenship question. To date, the Department of
Commerce has produced almost 14,000 pages of responsive documents.
The Secretary testified before the Committee for nearly seven hours, and
the Department of Commerce also agreed to make available for voluntary
transcribed interviews its General Counsel, a senior adviser to the Secre-
tary, and a former senior counsel to the General Counsel. The Department
of Justice, meanwhile, has made eight document submissions to the
Committee between February and May of 2019 that total more than
17,000 pages. In addition, the Principal Deputy Assistant Attorney Gen-
eral for the Civil Rights Division voluntarily appeared for a transcribed
interview, as did a Counselor to the Attorney General.
While the Department of Justice and the Department of Commerce
have produced an extensive amount of material, both Departments have
withheld from production a limited number of documents that are covered
by components of executive privilege, including the deliberative process,
attorney-client, and attorney work product components. A federal court
has held that many of these same documents are privileged from disclo-
sure in ongoing litigation over the inclusion of the citizenship question on
the census. See New York v. U.S. Dep’t of Commerce,
345 F. Supp. 3d
444, 451 n.7 (S.D.N.Y. 2018) (noting denials of motions to compel on,
inter alia, “deliberative-process-privilege grounds” and “attorney-client-
privilege grounds”). Despite the Executive Branch’s good-faith efforts at
accommodating the Committee’s information needs, on June 3, 2019, the
Committee sent separate letters to the Secretary and me stating that it
would schedule a vote to hold each of us in contempt of Congress as a
result of our purported failures to comply with the April 2 subpoenas.
Although the Committee demanded an immediate production of all sub-
poenaed documents in unredacted form, it stated that it would consider
postponing the contempt vote if the Secretary and I produced certain
documents of priority to the Committee. Those documents include (i) the
eleven documents specified in the Committee’s subpoena to the Secretary;
and (ii) the memorandum and note to the Acting Assistant Attorney Gen-
eral for the Civil Rights Division from the Department of Commerce
attorney, as well as all drafts of the Department of Justice’s December
2017 letter to the U.S. Census Bureau requesting the inclusion of a citi-
3
43 Op. O.L.C. __ (June 11, 2019)
zenship question. The Committee’s contempt vote is currently scheduled
for June 12, 2019.2
II.
In my view, production of the priority documents identified in the
Committee’s June 3 letters—all of which involve predecisional delibera-
tive material, attorney-client communications, or attorney work product—
would have a significant chilling effect on future deliberations among
senior executive branch officials, and would compromise the confidential-
ity on which the Executive Branch’s attorney-client relationships depend.
These confidentiality concerns are heightened at this time because, as
noted above, a federal court has held that a number of these documents
are protected by privilege in ongoing litigation. Accordingly, the Secre-
tary and I respectfully request that you assert executive privilege over the
specific documents identified in the Committee’s June 3 letters. We also
request that you make a protective assertion of executive privilege with
respect to the remainder of the subpoenaed documents in order to give the
Departments of Commerce and Justice time to determine whether a con-
clusive assertion of executive privilege would be necessary with respect
to any of the remaining documents.
A.
The priority documents requested in the Committee’s June 3 letters fit
squarely within the scope of executive privilege. Executive privilege
flows from the authorities vested in the President by Article II of the
Constitution and “has been asserted by numerous Presidents from the
earliest days of our Nation.” Congressional Requests for Confidential
2 The Committee has also indicated that it scheduled the contempt vote based on my
instruction to a Department of Justice official not to appear for a deposition without the
assistance of agency counsel. As the Department has explained, the Committee may not
constitutionally prohibit agency counsel from accompanying agency employees called to
testify about matters that potentially involve information protected by executive privilege.
See Attempted Exclusion of Agency Counsel from Congressional Deposition s of Agency
Employees, 43 Op. O.L.C. __ (May 23, 2019). Therefore, the congressional subpoena
purporting to require the Department official to appear without agency counsel was
legally invalid, and my instruction to the Department official was lawful and necessary to
prevent such a constitutional violation.
4
Executive Privilege Over Deliberative Materials Regarding Citizenship Question
Executive Branch Information,
13 Op. O.L.C. 153, 154 (1989) (“Re-
quests for Confidential Information”). It is “fundamental to the operation
of Government and inextricably rooted in the separation of powers under
the Constitution.” United States v. Nixon,
418 U.S. 683, 708 (1974).
One category of documents protected by executive privilege is “Execu-
tive Branch deliberative communications.” Assertion of Executive Privi-
lege Over Communications Regarding EPA’s Ozone Air Quality Stand-
ards and California’s Greenhouse Gas Waiver Request,
32 Op. O.L.C.
1, 2 (2008) (“EPA Assertion”) (Mukasey, Att’y Gen.).3 The Supreme
Court has recognized “the valid need for protection of communications
between high Government officials and those who advise and assist them
in the performance of their manifold duties,” concluding that “the im-
portance of this confidentiality is too plain to require further discussion.”
Nixon,
418 U.S. at 705. “Threat of compelled disclosure of confidential
Executive Branch deliberative material can discourage robust and
candid deliberations, for ‘[h]uman experience teaches that those who
expect public dissemination of their remarks may well temper candor with
a concern for appearances and for their own interests to the detriment of
the decisionmaking process.’” Assertion of Executive Privilege Over
Documents Generated in Response to Congressional Investigation into
Operation Fast and Furious, 36 Op. O.L.C. __, at *3–4 (June 19, 2012)
(“Fast and Furious Assertion”) (Holder, Att’y Gen.) (quoting Nixon,
418
U.S. at 705). It is for this reason that Presidents have repeatedly asserted
executive privilege to protect confidential deliberative materials of senior
executive branch officials from disclosure to Congress.4
3 See also Assertion of Executive Privilege Concerning the Dismissal and Replacement
of U.S. Attorneys,
31 Op. O.L.C. 1, 2 (2007) (“U.S. Attorneys Assertion”) (Clement, Act’g
Att’y Gen.); Assertion of Executive Privilege with Respect to Clemency Decision,
23 Op.
O.L.C. 1, 1–2 (1999) (“Clemency Assertion”) (Reno, Att’y Gen.); Assertion of Executive
Privilege Regarding White House Counsel’s Office Documents,
20 Op. O.L.C. 2, 3 (1996)
(Reno, Att’y Gen.).
4 See, e.g., Fast and Furious Assertion, 36 Op. O.L.C. at *2–5; EPA Assertion, 32 Op.
O.L.C. at 2–3; Assertion of Executive Privilege Concerning the Special Counsel’s Inter-
views of the Vice President and Senior White House Staff,
32 Op. O.L.C. 7, 8–11 (2008);
Assertion of Executive Privilege with Respect to Prosecutorial Documents,
25 Op. O.L.C.
1, 1–2 (2001); Clemency Assertion, 23 Op. O.L.C. at 1–4; Assertion of Executive Privi-
lege in Response to a Congressional Subpoena,
5 Op. O.L.C. 27, 29–31 (1981) (Smith,
Att’y Gen.).
5
43 Op. O.L.C. __ (June 11, 2019)
The priority documents requested in the Committee’s June 3 letters—
the eleven documents identified in the subpoena to the Secretary, the
memorandum and note concerning the citizenship question drafted by a
Department of Commerce attorney, and drafts of the Department of Jus-
tice’s 2017 letter requesting the inclusion of the citizenship question—are
deliberative communications protected by executive privilege. Each of
these documents or communications was generated in the course of the
deliberative process concerning either the Secretary’s decision to reinstate
a citizenship question or the Department of Justice’s decision to request
that such a question be reinstated, and reflect the internal advice, opin-
ions, or recommendations of senior executive branch officials. All of the
Commerce documents predate the Secretary’s March 2018 decision to
reinstate a citizenship question, and all of the Justice documents predate
its 2017 letter requesting the inclusion of the question. To protect the
integrity of executive branch decision-making, department heads and their
advisers must be able to engage in full and candid discussions about the
advantages and disadvantages of significant and sensitive decisions, such
as the Secretary’s decision to include the citizenship question on the
census questionnaire. Indeed, a federal court has already held that some of
these priority documents, such as certain of the drafts of the 2017 letter
requesting the inclusion of the citizenship question, are protected by the
deliberative process privilege for substantially similar reasons. See Mem-
orandum Opinion and Order at 5, New York v. U.S. Dep’t of Commerce,
No. 18-CV-2921 (S.D.N.Y. Oct. 5, 2018) (Dkt. No. 369).
Executive privilege also protects attorney-client communications and
attorney work product. Assertion of Executive Privilege Regarding White
House Counsel’s Office Documents,
20 Op. O.L.C. 2, 3 (1996) (Reno,
Att’y Gen.). In the common law, the attorney-client privilege “is the
oldest of the privileges for confidential communications.” Upjohn Co. v.
United States,
449 U.S. 383, 389 (1981). “Its purpose is to encourage full
and frank communication between attorneys and their clients and thereby
promote broader public interests in the observance of law and administra-
tion of justice.”
Id. As for attorney work product, in the ordinary case, “it
is essential that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel.” Hickman v.
Taylor,
329 U.S. 495, 510–11 (1947). Were attorney work product “open
to opposing counsel on mere demand, . . . [i]nefficiency, unfairness and
6
Executive Privilege Over Deliberative Materials Regarding Citizenship Question
sharp practices would inevitably develop in the giving of legal advice
and in the preparation of cases for trial . . . , [a]nd the interests of the
clients and the cause of justice would be poorly served.”
Id. at 511.
These considerations apply with even greater force where senior execu-
tive branch officials are the clients. These officials must be able to have
free and frank consultations with their attorneys about the scope of their
legal authorities and responsibilities, without fear that these discussions,
or attorney work product generated in preparation for potential litigation,
will be publicized.
Some of the priority documents requested by the Committee are cov-
ered by the attorney-client-communications or attorney-work-product
components of executive privilege. Specifically, the memorandum and
note drafted by an attorney in the Department of Commerce’s Office of
General Counsel contain legal analysis, recommendations, and advice
concerning the reinstatement of a citizenship question. Versions of this
memorandum were transmitted to the Secretary as well as to the Acting
Assistant Attorney General for the Department of Justice’s Civil Rights
Division, and in both instances offered advice to a client regarding the
legal authority and pertinent case law for various potential courses of
action and the strengths and weaknesses of these alternatives. Moreover,
the attorney was asked to prepare the memorandum precisely because the
Departments expected that litigation would follow a decision to include
the citizenship question. If the attorney-work-product doctrine is to have
any force, then an executive branch agency may not be required to dis-
close attorney work product developed in preparation for potential litiga-
tion while that very litigation is ongoing. For these reasons, the memoran-
dum drafted by the Department of Commerce attorney, and the note
ancillary to it, fit comfortably within the attorney-client-communications
and attorney-work-product components of executive privilege. This
conclusion, too, is consistent with a federal court’s holding that the mem-
orandum is protected by the common-law attorney-client privilege. See
Order, New York, No. 18-CV-2921 (Sept. 30, 2018) (Dkt. No. 361).
Accordingly, I conclude that the subpoenaed materials identified as
priority documents in the Committee’s June 3, 2019 letters clearly fall
within the scope of executive privilege.
7
43 Op. O.L.C. __ (June 11, 2019)
B.
I next explain the need for you to make a protective assertion of execu-
tive privilege with respect to the remainder of the documents requested in
the Committee’s April 2 subpoenas to the Secretary and me. In cases
“where a committee has declined to grant sufficient time to conduct a full
review, the President may make a protective assertion of privilege to
protect the interests of the Executive Branch pending a final determina-
tion about whether to assert privilege.” Letter for the President from
William P. Barr, Attorney General at 1–2 (May 8, 2019); Protective
Assertion of Executive Privilege Regarding White House Counsel’s Office
Documents,
20 Op. O.L.C. 1 (1996) (“Protective Assertion of Executive
Privilege”) (Reno, Att’y Gen.). The remainder of the requested docu-
ments—identified in item 2 of the schedule for each of the subpoenas—
include all documents and communications between Department of
Commerce and Department of Justice officials within and outside of the
Executive Branch through most of 2017 regarding the decision to include
a citizenship question on the census questionnaire. That extremely broad
request sweeps in many tens of thousands of pages of information, much
of which has already been produced to the Committee, but much of which
the Departments of Justice and Commerce are still continuing to process.
These materials, which may include documents withheld on privilege
grounds during ongoing litigation, undoubtedly have the potential to
include additional deliberative, attorney-client, or attorney-work-product
documents protected by executive privilege.
Consistent with paragraph 5 of President Reagan’s 1982 memorandum
about assertions of executive privilege, the Department of Justice has
requested that the Chairman of the Committee hold the subpoenas in
abeyance and delay any vote recommending that the House of Represent-
atives approve contempt resolutions for failing to comply with the sub-
poenas, pending a final presidential decision on whether to invoke execu-
tive privilege as to the remainder of the documents. See Memorandum for
the Heads of Executive Departments and Agencies, Re: Procedures
Governing Responses to Congressional Requests for Information at 2
(Nov. 4, 1982). The Chairman, however, has not agreed to adjourn the
markup session scheduled for 10:00 a.m. on June 12 on a resolution
recommending findings of contempt. In these circumstances, where a
department lacks sufficient time to review the requested documents, you
8
Executive Privilege Over Deliberative Materials Regarding Citizenship Question
may properly assert executive privilege with respect to the entirety of the
remaining materials that the Committee has demanded, pending a final
decision on the matter. You would be making only a preliminary, protec-
tive assertion of executive privilege designed to ensure your ability to
make a final assertion, if necessary, over some or all of the remaining
materials. See Protective Assertion of Executive Privilege, 20 Op. O.L.C.
at 1. I conclude that such a preliminary, protective assertion is legally
permissible.
III.
A congressional committee “may overcome an assertion of executive
privilege only if it establishes that the subpoenaed documents are ‘demon-
strably critical to the responsible fulfillment of the Committee’s func-
tions.’” Assertion of Executive Privilege Concerning the Special Coun-
sel’s Interviews of the Vice President and Senior White House Staff,
32
Op. O.L.C. 7, 11 (2008) (emphasis added) (quoting Senate Select Comm.
on Presidential Campaign Activities v. Nixon,
498 F.2d 725, 731 (D.C.
Cir. 1974) (en banc)).5 “Those functions must be in furtherance of
Congress’s legitimate legislative responsibilities,”
id., because “[c]on-
gressional oversight of Executive Branch actions is justifiable only as a
means of facilitating the legislative task of enacting, amending, or repeal-
ing laws,” Assertion of Executive Privilege in Response to a Congression-
al Subpoena,
5 Op. O.L.C. 27, 29–31 (1981) (“1981 Assertion”) (Smith,
Att’y Gen.); see McGrain v. Daugherty,
273 U.S. 135, 176 (1927) (con-
gressional oversight power may be used only to “obtain information in aid
of the legislative function”). The Committee has not satisfied that high
standard here.
The Committee has asserted that it needs the subpoenaed documents
because it is investigating “the actual reasons behind the Trump Admin-
istration’s decision to add a citizenship question to the 2020 Census.”
Letter for Wilbur L. Ross, Jr., Secretary, Department of Commerce, from
Elijah E. Cummings, Chairman, Committee on Oversight and Reform,
U.S. House of Representatives at 2–3 (June 3, 2019) (“Cummings Letter
5 See also, e.g., U.S. Attorneys Assertion, 31 Op. O.L.C. at 2; Clemency Assertion, 23
Op. O.L.C. at 2; Nixon,
418 U.S. at 707 (“[I]t is necessary to resolve those competing
interests in a manner that preserves the essential functions of each branch.”).
9
43 Op. O.L.C. __ (June 11, 2019)
to Ross”); see Letter for William P. Barr, Attorney General, from Elijah
E. Cummings, Chairman, Committee on Oversight and Reform, U.S.
House of Representatives at 2–3 (June 3, 2019) (“Cummings Letter to
Barr”) (similar). According to the Committee, the Secretary “began a
secret campaign to add the citizenship question just days after assuming
[his] post and several months before any request from the Department of
Justice.” Cummings Letter to Ross at 2; see also Cummings Letter to Barr
at 2 (similar). The Committee believes that “the real reason the Trump
Administration sought to add the citizenship question was not to help
enforce the Voting Rights Act at all, but rather to gerrymander congres-
sional districts in overtly racist, partisan, and unconstitutional ways.”
Cummings Letter to Ross at 2; see also Cummings Letter to Barr at 2
(similar). The Committee has stated that its investigation “may lead to
legislation” concerning the processes and notification requirements for
adding questions to the census. Cummings Letter to Ross at 6; see also
Cummings Letter to Barr at 6 (similar).
The Constitution authorizes Congress to enact laws governing the cen-
sus. See U.S. Const. art. I, § 2. Thus, I recognize that the Committee has
legitimate oversight interests in this area generally. It is not sufficient,
however, that the subpoenaed documents may, at some level, relate to a
legitimate oversight interest. To overcome an assertion of executive
privilege, a congressional committee must “point[] to . . . specific legisla-
tive decisions that cannot responsibly be made without access to [the
privileged] materials.” Senate Select Comm.,
498 F.2d at 733. “While
fact-finding by a legislative committee is undeniably a part of its task,
legislative judgments normally depend more on the predicted conse-
quences of proposed legislative actions and their political acceptability,
than on precise reconstruction of past events.”
Id. at 732; see also Re-
quests for Confidential Information, 13 Op. O.L.C. at 159 (“Congress will
seldom have any legitimate legislative interest in knowing the precise
predecisional positions and statements of particular executive branch
officials.”).
The Committee has yet to identify any specific legislative need for the
subpoenaed documents, much less a “demonstrably critical” one. Senate
Select Comm.,
498 F.2d at 731. It is difficult to conceive how the Secre-
tary’s deliberative e-mails regarding the inclusion of the citizenship
question, or an attorney’s legal analysis and assessment regarding that
10
Executive Privilege Over Deliberative Materials Regarding Citizenship Question
inclusion, are necessary predicates to Congress’s enactment of legislation
regarding the census. Rather, the Committee appears to believe it may
investigate any and all processes of decision-making in the Executive
Branch regarding the census, regardless of whether that investigation has
any bona fide relationship to possible legislation, and regardless of
whether that investigation intrudes on executive branch prerogatives.
Thus, what the Committee appears to seek is a “precise reconstruction
of past events,” not because there are “specific legislative decisions that
cannot responsibly be made without” it, but simply for the sake of the
information itself.
Id. at 732–33. That purpose does not clear the high bar
required to overcome an assertion of executive privilege. The “informing
function” that Congress possesses under Article I “is that of informing
itself about subjects susceptible to legislation, not that of informing the
public.” Miller v. Transamerican Press, Inc.,
709 F.2d 524, 531 (9th Cir.
1983) (citing Hutchinson v. Proxmire,
443 U.S. 111, 132–33 (1979)); see
also Assertion of Executive Privilege Concerning the Dismissal and
Replacement of U.S. Attorneys,
31 Op. O.L.C. 1, 4 (2007) (“Broad, gener-
alized assertions that the requested materials are of public import are
simply insufficient under the ‘demonstrably critical’ standard.”). The
Committee has not identified any “specific legislative decisions that
cannot responsibly be made without access” to the privileged materials.
Senate Select Comm.,
498 F.2d at 733.
The Departments of Justice and Commerce, moreover, have already
made extensive efforts to accommodate the Committee’s requests. As
discussed above, each Department has produced tens of thousands of
pages of responsive documents and has made senior officials available for
hearings and transcribed interviews—and that process remains ongoing.
Except where the Committee unconstitutionally demanded that executive
branch officials appear without agency counsel, the Executive Branch has
made every official requested by the Committee in this investigation
available to testify, declining to answer only those questions that impli-
cated a protected privilege. See Attempted Exclusion of Agency Counsel
from Congressional Depositions of Agency Employees, 43 Op. O.L.C. __
(May 23, 2019). In my view, through these efforts, the two Departments
have been fulfilling in good faith their constitutional “obligation . . . to
make a principled effort to acknowledge, and if possible to meet, the
[Committee’s] legitimate needs.” 1981 Assertion, 5 Op. O.L.C. at 31.
11
43 Op. O.L.C. __ (June 11, 2019)
Accordingly, when I balance the Committee’s attenuated legislative
interest in the subpoenaed documents against the Executive Branch’s
strong interest in protecting the confidentiality of its internal deliberations
and the integrity of attorney-client communications and attorney work
product, I conclude that the Committee has not established that the sub-
poenaed documents are “demonstrably critical to the responsible fulfill-
ment” of the Committee’s legitimate legislative functions. Senate Select
Comm.,
498 F.2d at 731.
IV.
For the reasons set forth above, I have concluded that you may properly
assert executive privilege over the priority subpoenaed documents identi-
fied in the Committee’s June 3, 2019 letters, and may properly make a
protective assertion of executive privilege with respect to the remainder of
the subpoenaed documents to give the Departments of Commerce and
Justice time to determine whether any remaining documents may be
subject to privilege. I respectfully request that you do so.
WILLIAM P. BARR
Attorney General
12
