There may be no more public document in America than the census. Not only is a requirement for an “actual Enumeration” written directly into the Constitution, but it’s written into Article 1. After all, the number of seats in the House of Representatives is directly tied to the outcome of the census.
But now Donald Trump has spread his unprecedented claims of executive privilege to cover the planning documents for the 2020 census. The documents had been subpoenaed by the House Oversight Committee as part of an investigation into how the 2020 census is being designed, but as with so many other congressional subpoenas, the Trump White House did not comply. Through weeks of negotiation, the Commerce Department and the Department of Justice have both refused to hand over the requested documents.
When the Oversight Committee threatened to hold Secretary of Commerce Wilbur Ross in contempt unless the documents were provided, the Department of Justice responded with the threat that has become the go-to action under Trump and Attorney General William Barr: to declare everything in sight subject to executive privilege. When the Oversight Committee moved forward with contempt proceedings, Trump and Barr pulled the trigger, throwing a blanket of privilege over documents that explain how the 2020 census is being designed.
The DOJ contends that the House “failed to abide by the constitutionally mandated accommodation process,” which, one, isn’t constitutionally mandated, and two, was yielding nothing because, as Oversight Chair Elijah Cummings has stated, the Trump White House was simply stonewalling and pretending to negotiate. Now the Trump DOJ is claiming that Ross was just about to hand over some documents, but now that they’re privileged, he can’t.
The action only makes it more vital than ever that Congress go to court on one or all of the privilege claims made by Trump and once and for all establish the real boundaries of a privilege that is supposed to be restricted to very few situations.