U.S. Department of Justice
Of?ce of Legislative Affairs

 

 

O?ice ofrhe Assistant Attorney General Washington, D. C. 20530

June 12, 2019

The Honorable Elijah E. Cummings
Chairman

Committee on Oversight and Reform
US. House of Representatives
Washington, DC 20515

Dear Chairman Cummings:

Yesterday, the Department of Justice (Department) requested that Committee on
Oversight and Reform (Committee) postpone today?s scheduled vote recommending a resolution
citing the Attorney General and the Secretary of Commerce for contempt, and permit the
accommodation process to continue. We received your response shortly before 7:30 pm. last
night in which you declined our request that you hold the subpoenas in abeyance and delay any
vote on whether to recommend a citation of contempt for noncompliance with the subpoenas,
pending the President?s determination of an assertion of executive privilege.

You offered the Department until 9:00 pm. last night to agree to produce, by today,
unredacted copies of the priority documents identified in items 1 and 2 of the schedules for the
subpoenas. But the Department has explained to the Committee on several occasions that these
identified documents consist of attorney?client communications, attorney work product, and
deliberative communications, and a federal court has already held many of these documents to be
privileged in litigation. The Committee has made no effort to square its demands with these
established confidentiality interests, or the parallel privileges that were already upheld by a
federal judge.

While the Department is currently unable to produce these privileged materials, the
Department has made ongoing and continued efforts toward accommodation. Specifically, the
Department has offered to make John Gore available for an additional interview, so long as he
may be accompanied by Department counsel, and to continue to produce tens of thousands of
additional pages of documents we have identified as responsive to the subpoena. Contrary to the
Committee?s characterization of the Department?s document productions to date, these
submissions have included non-public, internal communications?including a number of emails
that were introduced by Committee staff as exhibits in the recent transcribed interview of a
Counselor to the Attorney General. Further, the additional documents the Department had been
planning to produce would have included similar communications. Nonetheless, we understand

The Honorable Elijah E. Cummings
Page Two

that our counter-offer towards accommodation has not been accepted, and that the Committee
will accept nothing but obviously privileged materials. We regret that the Committee has elected
to proceed in this fashion.

By proceeding with today?s vote, you have abandoned the accommodation process with
respect to your requests and subpoenas for documents concerning the Secretary?s decision to
include a citizenship question on the 2020 Census. The Executive Branch has engaged in good?
faith efforts to satisfy the legislative needs of the Committee. Moreover, until the Committee?s
abrupt decision to seek a contempt resolution, the Department was prepared to provide a
signi?cant number of additional documents responsive to the Committee?s April 2, 2019
subpoena. Unfortunately, rather than allowing the Department to complete its document
production, you have chosen to go forward with an unnecessary and premature contempt vote.

Accordingly, this letter is to advise you that the President has asserted executive privilege
over certain subpoenaed documents identi?ed by the Committee in its June 3, 2019 letters to the
Attorney General and the Secretary?speci?cally, the documents listed in item 1 of the schedules
for each of the subpoenas, as well as drafts of the Department?s December 12, 2017 letter to the
US. Census Bureau. These documents are protected from disclosure by the deliberative process,
attorney?client communications, or attorney work product components of executive privilege. In
addition, the President has made a protective assertion of executive privilege over the remainder
of the subpoenaed documents. As I indicated in my letter to you yesterday, this protective
assertion ensures the President?s ability to make a ?nal decision Whether to assert privilege
following a full review of these materials. See Letter for the President, from William P. Barr,
Attorney General at 1?2 (May 8, 2019); Protective Assertion of Executive Privilege Regarding
White House Counsel O?ice Documents, 20 Op. O.L.C. 1 (1996) (opinion of Attorney General
Janet Reno). Regrettably, you have made these assertions necessary by your insistence upon
scheduling a premature contempt vote.

   

en E. Boyd
. ssistant Attorney General

Enclosure

cc: The Honorable Jim Jordan
Ranking Member

The Attorney General
Washington, DC

June 11, 2019

The President
The White House
Washington, DC. 20500

Dear Mr. President,

The Secretary of Commerce and I are requesting that you assert executive privilege with
respect to documents responsive to a subpoena served on the Department of Justice and a
subpoena served on the Department of Commerce by the Committee on Oversight and Reform of
the United States House of Representatives (?Committee?) on April 2, 2019. The subpoenas
relate to the Committee?s investigation into the Secretary?s decision to include a citizenship
question on the 2020 decennial census questionnaire. The Committee has scheduled a meeting
for June 12, 2019, to vote on a resolution holding the Secretary and me in contempt of Congress
for failing to comply with the subpoenas. This letter formally requests you assert executive
privilege and explains the legal basis for such an assertion.I

I.

On December 12, 2017, the General Counsel of the Justice Management Division sent a
letter to the U.S. Census Bureau requesting the reinstatement of a question regarding citizenship
on the 2020 decennial census questionnaire. The letter stated that citizenship data is critical to
the Department of Justice?s enforcement of the Voting Rights Act and its protections against
racial discrimination in voting. The Department explained that, to enforce the Act?s
requirements, it needs a reliable calculation of the citizen voting-age population in localities
where voting rights violations are alleged or suspected, and that the census'is the most
appropriate vehicle for collecting that data. Approximately three months later, on March 26,
2018, the Secretary announced that he was reinstating a citizenship question on the census in
response to the Department?s request.

On January 8, 2019, the Committee sent a letter to the Secretary requesting an extremely
broad set of documents regarding the Secretary?s decision to include the citizenship question on
the census questionnaire. On February 12, 2019, the Committee sent a letter to the Acting
Attorney General requesting similar documents regarding the Department of ustice?s role in that
decision. The Departments began producing thousands of responsive documents to the
Committee on a rolling basis, and'rnade multiple witnesses aVailable for interviews.

 

1 The Secretary of Commerce has made a parallel request. I See Letter for the President, from
Wilbur Ross, Secretary, Department of Commerce (June 11, 2019).

Despite these efforts, the Committee issued separate subpoenas to the Secretary and me
on April 2, 2019, seeking many of the documents requested in the Committee?s January 8 and
February 12 letters. The subpoena issued to the Secretary requested eleven speci?c documents,
including emails between the Secretary and his close advisers, as well as emails and documents
produced by or sent to an attorney in the Department of Commerce?s Of?ce of General Counsel.
The subpoena also requested all communications from January 20, 2017 through December 12,
2017 among Department of Commerce of?cials or between such of?cials and outside entities
concerning the citizenship question. The subpoena issued to me requested a memorandum and
note to the Acting Assistant Attorney General for the Department of Justice?s Civil Rights
Division from the same Department of Commerce attorney regarding the citizenship question.
The subpoena also requested all documents and communications from January 20, 2017 through
December 12, 2017 within the Department of Justice and with outside entities regarding the
Department of Justice?s request to include the citizenship question.

The Department of Justice and the Department of Commerce have made substantial
efforts to accommodate the Committee?s oversight interests concerning the citizenship question.
To date, the Department of Commerce has produced almost 14,000 pages of responsive
documents. The Secretary testi?ed before the Committee for nearly seven hours, and the
Department of Commerce also agreed to make available for voluntary transcribed interviews its
General Counsel, a senior advisor to the Secretary, and a former senior counsel to the General
Counsel. The Department of Justice, meanwhile, has made eight document submissions to the
Committee between February and May of 2019 that total more than 17,000 pages. In addition,
the Principal Deputy Assistant Attorney General for the Civil Rights Division voluntarily
appeared for a transcribed interview, as did a Counselor to the Attorney General.

While the Department of Justice and the Department of Commerce have produced an
extensive amount of material, both Departments have withheld from production a limited
number of documents that are envered by components of executive privilege, including the
deliberative process, attorney?client, and attorney work product components. A federal court has
held that many of these same documents are privileged from disclosure in ongoing litigation over
the inclusion of the citizenship question on the census. See State of New York v. US. Dep?t of
Commerce, 345 F. Supp. 3d 444, 451 n.7 (S.D.N.Y. 2018) (noting denials of motions to compel
on, inter alia, grounds? and "attorney?client?privilege grounds?).
Despite the Executive Branch?s good-faith efforts at accommodating the Committee?s
information needs, on une 3, 2019, the Committee sent separate letters to the Secretary and me
stating that it would schedule a vote to hold each of us in contempt of Congress-as. a result of our
purported failures to comply with the April 2 subpoenas. Although the Committee demanded an
immediate production of all subpoenaed documents in unredacted form, it stated that it would
consider postponing the contempt vote if the Secretary and I produced certain documents of
priority to the Committee. Those documents include the eleven documents speci?ed in the
Committee?s subpoena to the Secretary; and (ii) the memorandum and note to the Acting
Assistant Attorney General for the Civil Rights Division from the Department of Commerce
attorney, as well as all drafts of the Department of Justice?s December 2017 letter to the U.S.

Census Bureau requesting the inclusion of a citizenship question. The Committee?s contempt
vote is currently scheduled for June 12, 2019.2

II.

In my view, production of the priority documents identi?ed in the Committee?s June 3
letters?all of which involve predecisionaldeliberative material, attorney?client communications,
or attorney work product?would have a signi?cant chilling effect on future deliberations among
senior executive branch of?cials, and would compromise the con?dentiality on which the
Executive Branch?s attorney-client relationships depend. These confidentiality concerns are
heightened at this time because, as noted above, a federal court has held that a number of these
documents are protected by privilege in ongoing litigation. Accordingly, the Secretary and 
respect?illy request that you assert executive privilege over the speci?c documents identi?ed in
the Committee?s June 3 letters. We also request that you make a protective assertion of
executive privilege with respect to the remainder of the subpoenaed documents in order to give
the Departments of Commerce and Justice time to determine whether a conclusive assertion of
executive privilege would be necessary with respect to any of the remaining documents.

A.

The priority documents requested in the Committee?s une? 3 letters ?t squarely within the
scope of executive privilege. Executive privilege ?ows from the authorities vested in the
President by Article II- of the Constitution and ?has been asserted by numerous Presidents from
the earliest days of our Nation.? Congressional Requests for Con?dential Executive Branch
Information, 13 Op. O.L.C. 153, 154 (1989) (?Requests for Con?dential Information?). It is
?fundamental to the operation of Government and inextricably rooted in the separation of powers
under the Constitution.? United States v. Nixon, 418 US. 683, 708 (1974).

One category of documents protected by executive privilege is ?Executive Branch
deliberative communications.? Assertion of Executive Privilege Over Communications
Regarding EPA ?s Ozone Air Quality Standards and California is Greenhouse Gas Waiver
Request, 32 Op. O.L.C. 1, 2 (2008) Assertion?) (opinion of Attorney General Michael B.
Mukasey).3 The Supreme Court has recognized ?the valid need for protection of

 

2 The Committee has also indicated that it scheduled the contempt vote based on my instruction to
a Department of Justice of?cial not to appear for a deposition without the assistance of agency counsel.
As the Department has explained, the Committee may not constitutionally prohibit agency counsel from
accompanying agency employees called to testify about matters that potentially involve information
protected by executive privilege. See Attempted Exclusion ongency Counsel from Congressional
'Depositions ongency Employees, 43 Op. O.L.C. (May 23, 2019). Therefore, the congressional
subpoena purporting to require the Department of?cial to appear without agency counsel was legally
invalid, and my instruction to the Department of?cial was lawful and necessary to prevent such a
constitutional violation.

3 See also Assertion of Executive Privilege Concerning the Dismissal and Replacement of US.
Attorneys, 31 Op. O.L.C. 1, 2 (2007) Attorneys Assertion?) (opinion of Acting Attorney General
Paul D. Clement); Assertion of Executive Privilege with Respect to Clemency Decision, 23 Op. O.L.C. 1,
1?2 (1999) (?Clemency Assertion?) (opinion of Attorney General Janet Reno); Assertion of Executive

communications between high Government of?cials and those who advise and assist them in the
performance of their manifold duties,? concluding that ?the importance of this con?dentiality is
too plain to require further discussion.? Nixon, 418 U.S. at 705. ?Threat of compelled disclosure
of con?dential Executive Branch deliberative material can discourage robust and candid
deliberations, for ?[h]uman experience teaches that those who expect public dissemination of
their remarks may well temper candor with a concern for appearances and for their own interests.
to the detriment of the decisionmaking process.?a Assertion of Executive Privilege Over
Documents Generated in Response to Congressional Investigation into Operation Fastand
Furious, 36 Op. O.L.C. at *3?4 (June 19, 2012) (?Fast and Furious Assertion?) (opinion of
Attorney General Eric H. Holder, Jr.) (quoting Nixon, 418 US. at 705). It is for this reason that
Presidents have repeatedly asserted executive privilege to protect con?dential deliberative
materials of senior executive branch of?cials from congressional disclosure.4

The priority documents requested in the Committee?s June 3 letters?the eleven
documents identi?ed in the subpoena to the Secretary, the memorandum and note concerning the
citizenship question drafted by a Department of Commerce attorney, and drafts of the
Department of ustice?s 2017 letter requesting the inclusion of the citizenship question?are
deliberative communications protected by executive privilege. Each of these documents or
communications was generated in the course of the deliberative process concerning either the
Secretary?s decision to reinstate a citizenship question or the Department of Justice?s decision to
request that such a question be reinstated, and re?ect the internal advice, opinions, or
recommendations of senior executive branch of?cials. All of the Commerce documents predate
the Secretary?s March 2018 decision to reinstate a citizenship question, and all of the Justice
documents predate its 2017 letter requesting the inclusion of the question. To protect the
integrity of executive branch decision-making, department heads and their advisers must be able'
to engage in full and candid discussions about the advantages and disadvantages of signi?cant
and sensitive decisions, such as the Secretary?s decision to include the citizenship question on
the census questionnaire. Indeed, a federal court has already held that some of these priority
documents, such as certain of the drafts of the 2017 letter requesting the inclusion of the
citizenship question, are protected by the deliberative process privilege for substantially similar
reasons. See Memorandum Opinion and Order at 5, State of New York v. US. Dep ?t of
Commerce, No. (S.D.N.Y. Oct. 5, 2018) (Dkt. No. 369).

Executive privilege also protects attorney-client communications and attorney work
product. Assertion of Executive Privilege Regarding White House Counsel?s O?ice Documents,
20 Op. O.L.C. 2, 3 (1996) (opinion of Attorney General Janet Reno). In the common law, the
attorney-client privilege ?is the oldest of the privileges for con?dential communications.?
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). ?Its purpose is to encourage full and

 

Privilege Regarding White House Counsel?s O?ice Documents, 20 Op. O.L.C. 2, 3 (I996) (opinion of
Attorney General Janet Reno).

-4 See, Fast and Furious Assertion, 36 Op. O.L.C. at EPA Assertion, 32 Op. O.L.C. at
2?3; Assertion of Executive Privilege Concerning the Special Counsel ?s Interviews of the Vice President
and Senior White House Staf? 32 Op. O.L.C. 7, 8~ll (2008); Assertion of Executive Privilege with
Respect to .Prosecutorial Documents, 25 Op. O.L.C. 1, 1?2 (2001); Clemency Assertion, 23 Op. O.L.C. at
1?4; Assertion of Executive Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 29?31
(1981) (opinion of Attorney General William French Smith).

4

frank communication between attorneys and their clients and thereby promote broader public
interests in the observance of law and administration of justice.? Id. As for attorney work
product, in the ordinary case, ?it is essential that a lawyer work with a certain degree of privacy,
free from unnecessary intrusion by opposing parties and their counsel.? Hickman v. Taylor, 329
US. 495, 510~ll (1947). Were attorney work product ?open to opposing counsel on mere 
demand, . . . [i]nefficienoy, unfairness and sharp practices would inevitably develop in the giving
of legal advice and in the preparation of cases for trial . . . [a]nd the interests of the clients and
the cause of justice would be poorly served.? Id. at 511. These considerations apply with even
greater force where senior executive branch of?cials are the clients. These officials must be able
to have free and frank consultations with their attorneys about the scope of their legal authorities
and responsibilities, without fear that these discussions, or attorney work product generated in
preparation for potential litigation, will be publicized.

Some of the priority documents requested by the Committee are covered by the attomey?
client?communications or attorney-work-product components of executive privilege.
Speci?cally, the memorandum and note drafted by an attorney in the Department of Commerce? 3
Office of General Counsel contain legal analysis, recommendations, and advice concerning the
reinstatement of a citizenship question. Versions of this memorandum were transmitted to the
Secretary as well as to the Acting Assistant Attorney General for the Department of Justice? 3
Civil Rights Division, and in both instances offered advice to a client regarding the legal
authority and pertinent case law for various potential courses of action and the and
weaknesses of these alternatives. Moreover, the attorney was asked to prepare the memorandum
precisely because the Departments expected that litigation would follow a decision to include the
citizenship question. If the attorney-work?product doctrine is to have any force, then an
executive branch agency may not be required to disclose attorney work product developed in
preparation for potential litigation while that very litigation is ongoing. For these reasons, the
memorandum drafted by the Department of Commerce attorney, and the note ancillary to it, fit
comfortably within the attorney?client?commrmications and attomey?work?product components
of executive privilege. This conclusion, too, is consistent with a federal court?s holding that the
memorandum is protected by the common?law attomey-client privilege. See Order, New York,
No. (Sept. 3 0, 2018) (Dkt. No. 3 61).

Accordingly, I conclude that the subpoenaed materials identified as priority documents in
the Committee?s June 3,2019 letters clearly fall within the scope of executive privilege.

B.

I next explain the need for you to make a protective assertion of executive privilege with
respect to the remainder of the documents requested in the Committee?s April 2 subpoenas to the
Secretary and me. In cases ?where a committee has declined to grant suf?cient time to conduct a
full review, the President may make a protective assertion of privilege to protect the interests of
the Executive Branch pending a ?nal determination about whether to assert privilege.? Letter for
the President, from William P. Barr, Attorney General at 1?2 (May 8, 2019); Protective
Assertion of Executive Privilege Regarding White House Counsel O?ice Documents, 20 Op.
O.L.C. (1996) (?Protective Assertion of Executive Privilege?) (opinion of Attorney General
Janet Reno). The remainder of the requested documents?identified in item 2 of the schedule for
each of the subpoenas?include all documents and communications between Department of

Commerce and Department of Justice officials Within and outside of the Executive Branch
through most of 2017 regarding the decision to include a citizenship question on the census
questionnaire. That extremely broad request sweeps in many tens of thousands of pages of
information, much of which has already been produced to the Committee, but much of which the
Departments of Justice and Commerce are still continuing to process. These materials, which
may include documents withheld on privilege grounds during ongoing litigation, undoubtedly
have the potential to include additional deliberative, attorney?client, or attorney work product
documents protected by executive privilege.

Consistent with paragraph 5 of President Reagan? 1982 memorandum about assertions
of executive privilege, the Department of Justice has requested that the Chairman of the
Committee hold the subpoenas in abeyance and delay any vote recommending that the House of
Representatives approve contempt resolutions for failing to comply with the subpoenas, pending
a ?nal presidential decision on whether to invoke executive privilege as to the remainder of the
documents. See Memorandum for the Heads of Executive Departments and Agencies, Re:
Procedures Governing Responses to Congressional Requests for Information at 2 (Nov. 4,
1982). The Chairman, however, has not agreed to adjourn the markup session scheduled for
10 am. on June 12 on a resolution recommending ?ndings of contempt. In these circumstances,
where a department lacks suf?cient time to review the requested documents, you may properly
assert executive privilege with respect to the entirety of the remaining materials that the
Committee has demanded, pending a ?nal decision on the matter. You would be making only a
preliminary, protective assertion of executive privilege designed to ensure your ability to make a
?nal assertion, if necessary, over some or all of the remaining materials. See Protective
Assertion of Executive. Privilege, 20 Op. O.L.C. at 1. I conclude that such a preliminary,
protective assertion is legally permissible.



A congressional committee ?may overcome an assertion of executive privilege only if it
establishes that the subpoenaed documents are ?demonstrably critical to the responsible
ful?llment of the Committee?s functions.? Assertion of Executive Privilege Concerning the
Special Counsel ?s Interviews of the Vice President and Senior White House Sta?, 32 Op. O.L.C.
7, 11 (2008) (quoting Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498
F.2d 725, 731 (DC. Cir. 1974) (en banc)) (emphasis added).5 ?Those functions must be in
furtherance of Congress?s legitimate legislative responsibilities,? id. because ?[c]ongressional
oversight of Executive Branch actions is justifiable only as a means of facilitating the legislative
task of enacting, amending, or repealing laws,? Assertion of Executive Privilege in Response to a
Congressional Subpoena, 5 Op. O.L.C. 27, 29?31 (1981) Assertion?) (opinion of
Attorney General William French Smith); see McGrain v. Daugherty, 273 US. 135, 176 (1927)
(congressional oversight power may be used only to ?obtain information in aid of the legislative
function?). The Committee has not satis?ed that high standard here.

 

5 See also, e. g, US. Attorneys Assertion, 31 Op. O.L.C. at Clemency Assertion, 23 Op. O.L.C.
at 2; Nixon, 418 US. at 707 is necessary to resolve those competing interests in a manner that
preserves the essential functions of each branch?).

The Committee has asserted that it needs the subpoenaed documents because it is
investigating ?the actual reasons behind the Trump Administration?s decision to add a citizenship
question to the 2020 Census.? Letter for Wilbur L. Ross, Jr., Secretary, Department of
Commerce, from Elijah E. Cummings, Chairman, Committee on Oversight and Reform, U.S.
House of Representatives at 2?3 (June 3, 2019) (?Cummings Letter to Ross?); see Letter for
William P. Barr, Attorney General, from Elijah E. Cummings, Chairman, Committee on
Oversight and Reform, U.S. House of Representatives at 2?3 (June 3, 2019) (?Cummings Letter
to Barr?) (similar). According to the Committee, the Secretary ?began a secret campaign to add
the citizenship question just days after assuming [his] post and several months before. any request
from the Department of Justice.? Cummings Letter to Ross at 2; see Cummings Letter to Barr at
2 (similar). The Committee believes that ?the real reason the Trump Administration sought to
add the citizenship question was not to help enforce the Voting Rights Act at all, but rather to
gerrymander congressional districts in overtly racist, partisan, and unconstitutional ways.?
Cummings Letter to Ross at 2; see Cummings Letter to Barr at 2 (similar). The Committee has
stated that its investigation ?may lead to legislation? concerning the processes and noti?cation
requirements for adding questions to the census. Cummings Letter to Ross at 6; see Cummings
Letter to Barr at 6 (similar).

The Constitution authorizes Congress to enact laws governing the census. See U.S.
Const. art. I, 2. Thus, I recognize that the Committee has legitimate oversight interests in this
area generally. It is not sufficient, however, that the subpoenaed documents may, at some level,
relate to a legitimate oversight interest. To overcome an assertion of executive privilege, a
congressional committee must ?point[] to . . . speci?c legislative decisions that cannot
responsibly be made without access to [the privileged] materials.? Senate Select Comm. 498
F.2d at 733. ?While fact-?nding by a legislative committee is undeniably a part of its task,
legislative judgments normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability, than on precise reconstruction of past events.?
Id. at 732; see also Requests for Con?dential Information, 13 Op. O.L.C. at 159 (?Congress will
seldom have any legitimate legislative interest in knowing the precise predecisional positions and
statements of particular executive branch of?cials?).

The Committee has yet to identify any speci?c legislative need for the subpoenaed
documents, much less-a ?demonstrably critical? one. Senate Select Comm. 498 F.2d at 731. It
is dif?cult to conceive how the Secretary?s deliberative emails regarding the inclusion of the
citizenship question, or an attorney?s legal analysis and assessment regarding that inclusion, are
necessary predicates to Congress?s enactment of legislation regarding the census. Rather, the
Committee appears to believe it may investigate any and all processes of decision-making in the
Executive Branch regarding the census, regardless of whether that investigation has any bona
fide relationship to possible legislation, and regardless of whether that investigation intrudes on
executive branch prerogatives.

Thus, what the Committee appears to seek is a ?precise reconstruction of past events,?
not because there are ?speci?c legislative decisions that cannot responsibly be made without? it,
but simply for the sake of the information itself. Id. at 732?33. That purpose does not clear the
high bar required to overcome an assertion of executive privilege. The ?informing function? that
Congress possesses under Article I ?is that of informing itself about subjects susCeptibIe to
legislation, not that of informing the public.? Miler v. ransamerteart Press, Inc. 709 F.2d 524,

531 (9th Cir. 1983) (citing Hutchinson v. Proxmire, 443 US. 111, 132?33 (1979)); see also
Assertion of Executive Privilege Concerning the Dismissal and Replacement of US. Attorneys,
31 Op. 0.L.C. 1, 4 (2007) (?Broad, generalized assertions that the requested materials are of
public import are simply insuf?cient under the ?demonstrably critical? standard?). The
Committee has not identi?ed any ?speci?c legislative decisions that cannot responsibly be made
without access? to the privileged materials. Senate Select Comm, 498 F.2d at 733.

The Departments of Justice and Commerce, moreover, have already made extensive
efforts to accommodate the Committee?s requests. As discussed above, each Department has
produced tens of thousands of pages of responsive documents and has made senior of?cials
available for hearings and transcribed interviews?and that process remains ongoing. Except
where the Committee unconstitutionally demanded that executive branch of?cials appear Without
agency counsel, the Executive Branch has made every of?cial requested by the Committee in
this investigation available to testify, declining to answer only those questions that implicated a
protected privilege. See Attempted Exclusion of A gency Counsel ?om Congressional
Depositions of A gency Employees, 43 Op. 0.L.C. (May 23, 2019). In my view, through these
efforts, the two Departments have been ful?lling in good faith their constitutional ?obligation . . .
to make a principled effort to acknowledge, and if possible to meet, the [Committee?s] legitimate
needs.? 198] Assertion, 5 Op. 0.L.C. at 31.

Accordingly, when I balance the Committee?s attenuated legislative interest in the
subpoenaed documents against the Executive Branch?s strong interest in protecting the
con?dentiality of its internal deliberations and the integrity of attorney?client communications
and attorney work product, I conClude that the Committee has not established that the
subpoenaed documents are ?demonstrably critical to the responsible ful?llment? of the
Committee?s legitimate legislative ?mctions. Senate Select Comm. 498 F.2d at 731.

IV.

For the reasons set forth above, I have concluded that you may preperly assert executive
privilege over the priority subpoenaed documents identi?ed in the Committee?s June 3, 2019
letters, and may properly make a protective assertion of executive privilege with respect to the
remainder of the subpoenaed documents to give the Departments of Commerce and Justice time
to determine whether any remaining documents may be subject to privilege. I respectfully
request that you do so.

Sincerely,

P. Barr
Attorney General