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Department of Injustice
During the Trump administration, numerous officials flouted the law to advance their ideological agenda. Now that Trump is out of office, will any of them be held accountable? It's not looking good.
On March 20, 2018, former Commerce Secretary Wilbur Ross raised his right hand in front of the House Appropriations Committee and took an oath to tell the truth about the 2020 Census. Then, by all accounts, he lied. Ross lied again two days later during testimony before the House Ways and Means Committee. Nevertheless, it was revealed on Monday that the Department of Justice has declined to prosecute Ross. So the 83-year-old self-proclaimed billionaire will face no consequences for brazenly breaking the law.
Ross' false testimony was not incidental or about a matter of small importance. It involved Ross' decision, for the first time since 1950, to add a citizenship question to the 2020 Census. Experts believed that adding a citizenship question would significantly reduce response rates for Hispanics — citizens and non-citizens. An undercount of Hispanics would distort the distribution of political power, and federal funding, for years to come.
The citizenship question was ultimately struck from the 2020 Census questionnaire by the courts. But Ross didn't know that when he testified before Congress in 2018. He was attempting to portray his decision to include the citizenship question as part of a legitimate process driven by the Department of Justice.
This is a summary of his testimony from a ruling by the United States District Court:
Representative José Serrano asked Secretary Ross whether “the President or anyone else in the White House [had] directed [him] to add this or a similar question to the 2020 census.” Secretary Ross responded that the Department of Commerce was “responding solely to Department of Justice’s request.” Later in the same hearing, Representative Grace Meng asked Secretary Ross whether “the President or anyone in the White House discussed with you or anyone on your team about adding this citizenship question.” Secretary Ross answered: “I am not aware of any such.”
The truth about how and why Ross included the citizenship question has been reviewed by a federal district court — as part of a lawsuit by New York and other states to strike the questions — and an independent investigation by the Commerce Department Inspector General.
The federal district court established that Ross' efforts to include the citizenship question began on April 5, 2017, when Ross talked with Steve Bannon, who at the time was the Chief Strategist at the White House. Bannon asked Ross “if he would be willing to speak to Kansas Secretary of State Kris Kobach about Secretary Kobach’s ideas about a possible citizenship question on the decennial census.”
Ross spoke with Kobach a few days later and then emailed Commerce Department staff and told them to add the question by the end of the month.
The Commerce Department missed Ross' deadline because they knew they couldn't add the citizenship question without a reason. One of Ross' top deputies, Earl Comstock, came up with the idea of the Department of Justice asking for the question to be included so it would have better data to enforce the Voting Rights Act.
Comstock tried to get the Department of Justice to make such a request, but it never happened. Eventually, Ross ran out of patience and called Attorney General Jeff Sessions. That seemed to work and the Department of Justice produced the memo requesting the citizenship question. The memo was written, in large part, by Ross' staff.
The federal district court did not directly consider whether Ross lied to Congress. But it did find that Ross added the question in an "arbitrary and capricious manner" and not pursuant to a valid request by the Department of Justice.
The issue of Ross' testimony was considered explicitly by the Department of Commerce Inspector General. The Inspector General concluded that Ross "misrepresented the full rationale" for including the citizenship question while testifying under oath before both committees. Specifically, "there were significant communications related to the citizenship question among the then-Secretary, his staff, and other government officials between March 2017 and September 2017, which was well before the DOJ request memorandum."
Since this is a violation of the law, the Inspector General referred her findings to the Department of Justice Criminal Division. But, the Inspector General said in a letter to Congress, the Department of Justice "declined" to prosecute. The Department of Justice "did not respond to an inquiry into why it declined prosecution."
While the initial decision was made during the Trump administration, Attorney General Merrick Garland is not bound by that decision. But Garland has shown extreme reluctance to hold the Trump administration accountable for misconduct.
Garland defending Trump against alleged rape victim
E. Jean Carroll, who alleges Trump raped her in the mid-90s, is suing Trump for defamation. After Carroll made her allegations public in a memoir, Trump falsely claimed he never met Carroll, accused her of lying to sell books, and suggested she was conspiring with the Democratic Party.
Former Trump Attorney General Bill Barr intervened in the case, claiming Trump's attacks on Carroll were part of his job as president. In October 2020, Barr's argument was soundly rejected by United States District Judge Lewis Kaplan. "President Trump's allegedly defamatory statements concerning Ms. Carroll [were] not in the scope of his employment," Kaplan wrote.
Garland, however, continues to defend Trump. Under Garland, the Department of Justice argued in a new brief that "[s]peaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job."
Garland's next test
There will soon be another test to see how far Garland will go to protect Trump and his allies. Congressman Mo Brooks (R-AL) was sued in his personal capacity by Congressman Eric Swalwell (D-CA). In the lawsuit, Swalwell alleges that Brooks incited the January 6 riot. At the "Save America" rally shortly before the attack, Brooks encouraged the crowd to "fight for America" and "start taking names and kicking ass."
Brooks "has asked Attorney General Merrick Garland to certify that his actions on Jan. 6 were those of a government employee acting within the scope of his employment." If Garland certifies Brooks' request and gets approval from the court, Brooks would be dropped from the suit and the Department of Justice would be the defendant.
In Monday's New York Times, a bipartisan group of legal experts urged Garland to "emphatically reject Mr. Brooks’s request to make this certification." The experts argue that it "is difficult to imagine an act that falls farther outside the scope of a sitting congressman’s official duties than what he is accused of doing: helping to provoke a crowd to lay siege on the center of our federal government, putting his fellow members at risk of physical harm and ultimately disrupting the vital constitutional process of certifying presidential election results."
Garland has until July 27 to make his decision.
CORRECTION (7/20): This article has been corrected to reflect the fact that the initial decision not to prosecute Ross was made during the Trump administration.