DOJ, Cummings trade last-minute offers amid contempt impasse

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The Department of Justice advised President Donald Trump around providing documents related to a citizenship question on the 2020 census. | Yasin Ozturk/Anadolu Agency/Getty Images

House Democrats and the Justice Department traded last-minute offers late Tuesday night in an effort to stave off contempt proceedings against Attorney General William Barr and Commerce Secretary Wilbur Ross – but those talks appeared to lead to yet another impasse ahead of a Wednesday morning committee vote.

The two sides exchanged fiery letters after the Justice Department said Tuesday afternoon that it would advise President Donald Trump to invoke executive privilege to block the House Oversight and Reform Committee’s access to documents about efforts to add a citizenship question to the 2020 census.

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In a letter to Rep. Elijah Cummings (D-Md.), the panel’s chairman, Assistant Attorney General Stephen Boyd threatened a blanket assertion of privilege if the committee proceeds with a scheduled vote on Wednesday to hold Barr and Ross in contempt of Congress for failing to turn over subpoenaed documents, calling such proceedings “premature.”

“In the face of this threatened contempt vote, the attorney general is now compelled to request that the president invoke executive privilege with respect to the materials subject to the subpoena to the attorney general and the subpoena to the secretary of the department of commerce,” Boyd wrote.

Later Tuesday night, Cummings declared in a letter to Barr that he “cannot accept” the terms outlined by the Justice Department, adding: “The committee has a responsibility under the Constitution to conduct rigorous oversight of the Census, and we will not continue to delay our efforts due to your ongoing obstruction.”

Cummings said he would postpone Wednesday’s contempt votes for Barr and Ross if they agreed to provide specific documents by 9 p.m. Tuesday night. But a committee spokeswoman said after the deadline that the Justice Department “received the letter but can’t respond tonight.”

The war of words escalated last week after the Justice and Commerce departments rejected the committee’s subpoenas for additional documents about the addition of a citizenship question, prompting Cummings to schedule a full committee vote to hold Barr and Ross in criminal contempt of Congress. The Trump administration has maintained that it cannot legally turn over those documents.

The Justice Department’s eleventh-hour threat over executive privilege was nothing new. The department employed a similar tactic on the eve of the House Judiciary Committee’s vote to hold Barr in contempt of Congress for defying that panel’s subpoena for special counsel Robert Mueller’s unredacted report and all underlying evidence. The Judiciary Committee proceeded with its contempt vote against Barr, prompting Trump to assert executive privilege over the full Mueller report and all of its contents.

“If the committee decides to proceed in spite of this request, however, the department will be obliged to advise that the president assert executive privilege with respect to certain of the subpoenaed documents, and to make a protective assertion of executive privilege over the remainder of the documents,” Boyd wrote on Tuesday, adding that the subpoenaed information is already protected by attorney-client privilege.

The committee has been investigating the Trump administration’s decision to add a citizenship question to the 2020 census, with Democrats arguing that the question was added to trigger newly drawn congressional districts that would boost Republicans electorally.

Republicans have said the contempt proceedings against Barr and Ross are premature, citing ongoing Supreme Court litigation over the census issue.

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