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US. Department of Justice Office of Legislative Asairs (Office ofthe Assistant Attorney General Washingion, D.C 20530 Sune 11,2019 ‘The Honorable Chairman Committee on Oversight and Reform US. House of Representatives ‘Washington, DC. 20515 JME. Cummings Dear Chairman Cummings: ‘Since the first request by Chairman ofthe Committee on Oversight and Reform Committee") to the Department of lustice ("Department") on February 12, 2019 for documents concerning the Secretary of Commerce’s decision to include a citizenship question on the 2020 (Census, the Department has made significant efforts towards accommodation. After the Committee served the Attomey General with a subpoena on April 2, 2019 for much ofthe same ‘material, the Department continued to engage in good-faith efforts to satisty the Committee’s legislative needs, To date, dhe Department has made eight document submissions totaling more than 17,000 pages. In addltion, the Principal Deputy Assistant Attomey General for the Department's Civil Rights Division, John Gore, voluntarily appeared fora transcribed interview to answer the Commitee’s questions, as did a Counselor to the Attorney General. The Department's production, moreover, remains ongoing, as it works to process the significant number of documents identified as responsive to item 2 of the schedule for the Commitee’s subpoena Rather than seriously engage in an aecommodation proces, the Committe now has Schedule a vote to recommend that the Attorney General beheld in contempt for his purported failure to comply with the Commite’s subpoena, and for his instruction to Mr. Gore not to appear fra deposition unless agency counsel is present, A fo the production of subpoenaed ‘materials, the Department has epeatedly informed the Committe that a inited subset ofthe documents ia proested fom dzclonur by the dliberaive process, altorey aient ‘communications, or attorney work product components of executive privilege. These are the king of materials that the Executive Branch regularly and appropriately withholds in connection with oversight matter, because the disclosure of such information would have a signiicant chilling effet on future deliberations among senior exceutive branch oficial, and would ‘compromise the confidentiality on which the Executive Braneh'sattorey-lient relationships depend, Inthe pening civil tigation regarding the citizenship question, a federal district court ‘ns altcady eld that many of these same mutras are protected by privilege. See Stale of New Yorky. US. Dep't of Commerce, 345 F. Supp. 34 444, 451 n.7 (SDNY. 2018) ‘The Honorable Flijah F. Cummings Page Two ‘With respect ro Mr, Gore's deposition testimony, the Attomey General instructed Mr. Gore not to appear only aftr the Committee insisted on baering counsel from the deposition. As the Department explained on April 9, 2019, the Committee's effort to bar Depactment counsel ‘would unconsttutionally infringe upon the prerogatives ofthe Executive Branch. See Letter for Elijah E. Cummings, Chairman, Committee on Oversight and Reform. U.S. House of Representatives at 2-3 (Apr. 9,2019). Because the Committee sought information from Mr. Gore relating to his official duties, the Department explained that ageney counsel must be present to ensure appropriate limits to Mr. Gore's questioning and to protect against the disclosure of privilege information, See id. I enclose an opinion from the Department's Office ‘of Legal Counsel explaining in greater detail why the Committee may not constitutionally ‘compel an executive branch witness to testify about potentially privileged matters while depriving the witness ofthe assistance of agency counsel. See Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. (May 23, 2019). ‘The Department has previously offered, and we offer again, to make Mr. Gare available forthe requested deposition if the Committee permits agency counsel to accompany him. ‘The Committee has failed to abide by the constitutionally mandated accommodation, process by declining to negotiate over the scope ofthe subpoenaed materials orto recognize legitimate executive branch interests, as well as by its premature devision to schedule @ contempt vote. In the face ofthis threatened contempt vote, the Attomey General is now compelled 10 ‘request thatthe President invoke executive privilege with espect tothe materials subject tothe subpoena to the Attorney General andthe subpoena tothe Secretary of the Department of ‘Commerce. [hereby request thatthe Committee hold the subpoenas in abeyance and delay any vote on whether to recommend a citation of contempt for noncompliance withthe subpoenas, pending the President's determination of this question. ‘This request is consistent with long-standing policy of the Executive Branch about ‘congressional requests for information implicating executive privilege. See President Ronald ‘Reagan, Memorandum for the Heads of Exeeutive Departments and Agencies, Procedures Governing Responses to Congressional Requests for Information 2 (Nov. 4, 1982) (directing ‘executive agencies to “request the Congressional body to hold its request for the information in abeyance” inorder to “protect the privilege pending a Presidential decision”). Regrettably, the Committee has made this request necessary by threatening to abandon the constitutionally mandated aecommedaion provese hetwren the branches nd to hold vote an eater tomorrow morning. ‘This request isnot itself an assertion of executive privilege, I'he Committee decides (0 proceed in spite ofthis request, however, the Department will be obliged to advise thatthe President assert executive privilege with respect to certain of the subpoenaed documents, and 10 make a protective assertion of executive privilege over the remainder ofthe documents, whieh undoubiedly include materia covered by executive privilege, while the Department continues to ‘The Honorable Elijah E. Cummings Page Three review them, See Letter for the President from Williams P. Barr, Attomey General at 1-2 (May 8, 2019); Protective Assertion of Executive Privilege Regarding White House Counsel's Ofice Documents, 20 Op. O.1.C. 1 (1996). Should the Committee take the unnecessary and counterpraductve step of proceeding witha contempt vote, the Department will be forced to reevaluate is current production efforts in ongoing matters. We remain open to further discussions with the Committee and we hope thatthe Committee does not make it necessary for the President to take these steps. A reply to this letter is requested before 5:30 pam. today. Enclosure cc; The Honorable Jim Jordan ‘Ranking Member