Update: An appeals court on Tuesday filed an order allowing the deposition of Commerce Secretary Wilbur Ross to proceed, but put the order on hold for 48 hours so that it could be appealed to the Supreme Court.
The high-stakes court battle to depose Commerce Secretary Wilbur Ross about his decision to add a citizenship question to the 2020 Census may come to a head this week, with Ross slated to sit for the deposition on Thursday.
The Trump administration, which faces numerous lawsuits over the question, has been fighting the effort to depose Ross tooth-and-nail, most recently turning to the Supreme Court to halt Thursday’s deposition. Justice Ruth Bader Ginsburg — the recipient of the petition because she oversees the appellate circuit where it came up — denied the request, but left the door open for it to come back up for Supreme Court review. The question is now in front of a federal appeals court, which has already ruled in favor of deposing John Gore, a top DOJ political appointee involved in adding the question.
If courts force Ross to sit for the deposition, it will be a remarkable event. A deposition of an executive branch official of Ross’ stature is extremely rare. According to Politico, the last Cabinet official who was called to testify in a civil proceeding while still in office appears to be Interior Secretary Bruce Babbitt, who took the stand in a 1999 trial over funding for Native American programs. The district court decision ordering Ross’ deposition pointed to three other sitting agency heads whose depositions were required by courts.
The challengers in the current case are also pointing to the deposition that Secretary of Commerce Philip Klutznick was forced to sit for in a lawsuit in the 1980s involving the Census count of New York, according to Politico.
If the Supreme Court does ultimately weigh in on the question, it will also give an early sense of how the court — with its most freshly minted justice, Brett Kavanaugh — will treat questions of executive power in the many lawsuits and investigations swirling around the Trump presidency.
The litigation over deposing Ross and Gore has pushed to the public view internal documents that undercut the Trump administration’s justification for adding the question. Ross testified in front of Congress earlier this year that it was being added at the request of the Justice Department, which sent him a letter in December 2017 arguing the data collected from the question was needed for Voting Rights Act enforcement.
That rationale was treated highly skeptically by civil rights advocates and census experts — who fear including the question will spook immigrant participation in the survey and diminish their political power as a result of the undercount.
Memos and emails released as part of the case showed that Ross as early as April 2017 was complaining to his aides that “nothing” had been done in response to his “months old” desire to have the question added. His deputies reached out to a number of different arms of the Trump administration to discuss adding the question, and at first the Justice Department was reluctant to get involved, according to a memo written by Commerce official Earl Comstock. Another email released in the litigation shows Comstock telling Ross that they “need to be diligent in preparing the administrative record” because the “issue will go to the Supreme court.”
Comstock, in excerpts of his own deposition that have become public, has denied knowing why Ross was seeking to add the question.
The parties challenging the question in the New York case, which include state Attorney General Barbara Underwood and the ACLU, argue that Ross’ testimony meets the high standards courts have previously placed on sitting top government officials for deposition. They say only Ross can fill in key gaps about the decision-making process — particularly after Comstock and others denied knowledge of his motivations – and have also pointed to how the records appear to contradict Ross’ testimony to Congress that the Justice Department initiated the request.
The deposition of Gore, meanwhile, has been sought in part due to reports that he was involved in drafting the DOJ’s ultimate request for the question, which was signed by a career official.
U.S. District Judge Jesse Furman agreed with the challengers, in an opinion that said Ross’ “intent and credibility are directly at issue in these cases.”
“[T]here is something surprising, if not unsettling, about Defendants’ aggressive efforts to shield Secretary Ross from having to answer questions about his conduct in adding the citizenship question to the census questionnaire,” Furman wrote.
Furman was similarly frustrated when the Justice Department sought to halt his orders for Ross’ and Gore’s deposition while it appealed them.
Meanwhile, the judges on the appeals court panel that heard arguments over deposing Gore last month were also notably tough on the Justice Department lawyers seeking to block the deposition, according to NPR.
12. During DOJ atty Eric McArthur’s rebuttal, Judge Rosemary Pooler said there was “no valid basis to support” @SecretaryRoss’ view that a citizenship question should be added to #2020census. “Everyone said don’t do it,” Judge Pooler added.
— Hansi Lo Wang (@hansilowang) September 25, 2018
The appeals court upheld Furman’s decision on ordering Gore’s deposition, as well as his denial of a request that his orders being temporarily blocked while they were appealed. The appeals court backed Gore’s deposition the same day it heard arguments on it. On its calendar Tuesday was consideration of the Ross deposition, meaning a decision could come as early as Tuesday afternoon.