MINORITY VIEWS
Report of the Committee on Oversight and Reform
Resolution Recommending that the House of Representatives Find William P. Barr,
Attorney General of the United States, and Wilbur L. Ross, Jr., Secretary of Commerce, in
Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued by the
Committee on Oversight and Reform
June 17, 2019
On June 12, 2019, the Committee adopted a resolution and report concluding that
Attorney General William P. Barr and Secretary of Commerce Wilbur L. Ross, Jr., should be
held in contempt of Congress over documents relating to the reinstitution of a citizenship
question on the 2020 decennial census (“contempt citation”). Chairman Elijah E. Cummings
issued subpoenas to Attorney General Barr and Secretary Ross for documents on April 2, 2019.
The contempt citation was premature, unnecessary, and designed to advance a partisan
goal of influencing ongoing litigation presently before the Supreme Court of the United States.
Both the Department of Justice and the Department of Commerce have cooperated extensively
with Chairman Cummings’s investigation into the Trump Administration’s decision to reinstitute
a citizenship question on the census. The Administration has produced over 31,000 pages of
documents in response to Committee requests. Secretary Ross voluntarily testified for over six
hours in a public hearing, and the Administration has made four witnesses available for day-long
transcribed interviews.
These views provide important—and missing—context to the contempt citation as
adopted by the Committee. A question soliciting citizenship information appeared on the census
in one form or another from 1820 to 2000 and has been asked annually on the Census Bureau’s
American Community Survey since 2005. Other nations request citizenship information as part
of their population surveys, which the United Nations recommends as a best practice.
Information solicited as a part of the census is protected from dissemination by federal law.
In the face of these facts, the contempt citation spins baseless conspiracy theories and
cherry-picks information to create false narratives about the Administration’s decision to
reinstitute the citizenship question. The contempt citation is the culmination of the Committee’s
effort to use its oversight authority to influence the Supreme Court—first by gathering
information the “courts can use” 1 and then by picking a public fight with the Administration to
generate controversy around the issue. Meanwhile, the Committee has eschewed and abandoned
its legislative function in this area, and instead chosen the path of publicity. By not considering
any legislative proposals aimed at the propriety of the citizenship question, the Committee is
misusing its oversight authority.

Hansi Lo Wang, Commerce Secretary To Face Lawmakers In Hearing On Census Citizenship Question, NAT’L
PUB. RADIO (Mar. 14, 2019), https://www.npr.org/2019/03/14/702185342/commerce-secretary-to-face-lawmakersin-hearing-on-census-citizenship-question.
1

1

 These views seek to address the contempt citation’s shortcomings and inaccuracies. To
provide as much context as possible, the views also hereby incorporate and attach a 72-page staff
report and a 386-page staff report issued by Ranking Member Jim Jordan.
I.

The contempt citation is premature because Chairman Cummings’s
investigation is active and ongoing

The Committee’s action in approving the contempt citation was premature. The
Committee’s fact-finding is active and ongoing. Because the Committee could obtain the
information it seeks in future investigative steps, the Committee has not exhausted all avenues to
obtaining the information such that contempt is appropriate at this time.
Upon assuming the chairmanship of the Committee in January 2019, Chairman
Cummings formally initiated an inquiry into Secretary Ross’s decision to reinstitute a citizenship
question on the 2020 census, requesting documents from both the Department of Commerce
(DOC) and the Department of Justice (DOJ). 2 Since then, both the DOC and DOJ have
cooperated with the Chairman’s investigation (Table 1). The DOC and DOJ have produced over
31,000 responsive documents—14,000 from DOC and 17,000 from DOJ (Table 2). In addition,
the Committee has received testimony from Secretary Ross, three senior current and former
DOC and DOJ officials, and the former Kansas Secretary of State. At the time of the
Committee’s action, it had scheduled two transcribed interviews with senior DOC officials.
TABLE 1 - TIMELINE: CITIZENSHIP INVESTIGATION
December 12,
2017
March 26, 2018
March 29, 2018
May 8 and 18,
2018

June 8, 2018
July 3, 2018
January 8, 2019

DOJ sent a letter to the Census Bureau requesting reinstatement of a
citizenship question on the 2020 census to better enforce Section 2 of the
Voting Rights Act.
Secretary Ross announced his decision to reinstate a citizenship question
on the 2020 census.
Secretary Ross formally submitted the 2020 census questions to Congress
as required by law.
Chairman Gowdy held a hearing with senior officials from DOC and DOJ
to discuss census oversight, including the citizenship question. At the
hearing, the Administration committed to producing the administrative
record to the Committee when it was produced to the court in the New
York case.
DOC produced documents responsive to Chairman Gowdy’s request.
DOC produced additional documents responsive to Chairman Gowdy’s
request.
Chairman Cummings requested documents from the Department of
Commerce regarding the decision to reinstitute the citizenship question.

Letter from Rep. Elijah Cummings, Chairman, H. Comm. on Oversight & Reform, to Hon. Wilbur Ross, Sec’y,
Dep’t of Commerce (Jan. 8, 2019). Although Chairman Cummings previously sought some information about the
2020 census as Ranking Member, this request was his first following his selection as chairman and the Committee’s
organizing meeting.

2

2

 TABLE 1 - TIMELINE: CITIZENSHIP INVESTIGATION
March 7, 2019
March 14, 2019
April 2, 2019
May 7, 2019
May 8, 2019
May 30, 2019
June 3, 2019
June 3, 2019
June 11, 2019
June 13, 2019
June 18, 2019
June 21, 2019

The Committee conducted a transcribed interview with Principal Deputy
Assistant Attorney General John Gore.
The Committee held a day-long hearing with Secretary Ross.
Chairman Cummings issued subpoenas to the DOC and DOJ. The
Chairman also subpoenaed Mr. Gore for a deposition.
Chairman Cummings sent letters requesting transcribed interviews with
Earl Comstock, Peter Davidson and James Uthmeier from the Department
of Commerce.
Chairman Cummings sent a letter to Secretary Wilbur Ross requesting a
meeting to discuss the Committee’s citizenship question investigation.
The Committee held a transcribed interview with Gene Hamilton,
Counselor to the Attorney General.
Committee held a transcribed interview with Kris Kobach, former Kansas
Secretary of State.
Chairman Cummings sent letters to Attorney General Barr and Secretary
Ross threatening to hold them in contempt of Congress.
The Committee held a transcribed interview with James Uthmeier, former
Senior Counsel, Department of Commerce Office of General Counsel.
The Committee approved a resolution and report concluding that Attorney
General Barr and Secretary Ross should be held in contempt of Congress.
Scheduled transcribed interview with Peter Davidson, General Counsel,
Department of Commerce.
Scheduled transcribed interview with Earl Comstock, Deputy Chief of
Staff and Director of Policy, Department of Commerce.

TABLE 2 - CITIZENSHIP QUESTION INVESTIGATION: DOCUMENT PRODUCTION SCHEDULE
Total Number of Documents Produced: 31,000 pages 3

3

Department of Commerce

Department of Justice

(14,000 pages)
June 8, 2018
July 3, 2019
January 29, 2019
February 19, 2019
March 5, 2019
March 15, 2019
March 19, 2019
March 28, 2019
April 25, 2019
June 3, 2019

(17,000 pages)
February 25, 2019
March 15, 2019
March 29, 2019
April 11, 2019
April 16, 2019
April 26, 2019
May 10, 2019
May 24, 2019

Total pages of documents produced as of June 7, 2019.

3

 If not for Chairman Cummings’s decision to abruptly cease the constitutionally mandated
accommodation process and proceed to contempt of Congress for two cabinet officials, there is
no reason to believe that the DOC and DOJ would not continue to cooperate with the
Committee’s investigation.
II.

The contempt citation is unnecessary because the Supreme Court will decide the
merits of the citizenship question soon

The Committee’s contempt citation was an unnecessary act of political theater. The
Supreme Court will issue its decision in Department of Commerce v. New York in a matter of
weeks, settling any controversy around the reinstitution of the citizenship question on the 2020
census. The Court’s decision will have a direct effect on the Committee’s investigation.
Accordingly, a prudent and responsible exercise of the Committee’s contempt authority would
dictate waiting for the Court’s decision.
On April 23, 2019, the Supreme Court heard oral argument in Department of Commerce
to review the lower court’s decision as well as a constitutional challenge to the Enumeration
Clause of the Constitution, Article I, Section 2, Clause 3. 4 The Supreme Court is expected to
issue its decision sometime in June 2019. Both the DOJ and DOC have explained to the
Committee that producing some privileged documents at this time would harm litigation interests
of the United States. 5
The contempt citation seeks to punish Attorney General Barr and Secretary Ross for
declining to harm the litigation interests of the United States. This manifest unfairness could
have been avoided if the Committee deferred consideration of the contempt citation until after
the Supreme Court issued its decision. Waiting, however, may have been antithetical to the
Committee’s strategy—according to Rep. Jimmy Gomez (D-CA), the Committee sought
information from the Commerce Department that “the courts can use” in the ongoing litigation. 6
III.

The contempt citation baselessly implies a vast conspiracy to use the census for
partisan political gain

The Committee’s action in approving the contempt citation stems from a baseless
assumption: that Secretary Ross has not been truthful in articulating his reasons for reinstituting a
citizenship question on the 2020 census. Chairman Cummings has said the purpose of his
investigation is “to understand the real reason that you [Secretary Ross] added a citizenship
question to the 2020 Census.” 7 Although Secretary Ross explained his reasons in detail in a

State of New York et al. v. United States Department of Commerce et al., 1-277 (S.D.N.Y. 2019).
See, e.g., E-mail from Kira Antell, Office of Legislative Affairs, Dep’t of Justice (Mar. 22, 2019 3:27PM);
Commerce Secretary Wilbur L. Ross, Jr.: Hearing Before the H. Comm on Oversight and Reform, 116th Congress,
47 (statement of Secretary Ross) (2019) [hereinafter “Ross hearing”].
6
Wang, supra, note 1.
7
Letter from Rep. Elijah Cummings, Chairman, H. Comm. on Oversight & Reform, to Hon. Wilbur Ross, Sec’y,
Dep’t of Commerce (Mar. 29, 2019) (emphasis added).
4
5

4

 public memorandum, 8 Chairman Cummings and the Committee refuse to believe them and
instead search for evidence to show a nefarious plot carried out by shadowy and powerful
political operatives. However, the Committee has no evidence to support such a conclusion.
The contempt citation cites a redistricting study authored in 2015 by a now-deceased man
named Thomas Hofeller as evidence that Secretary Ross’s reasons were pretextual. 9 In the study,
conducted for the Washington Free Beacon, Mr. Hofeller made several general assertions about
the effects of adding a citizenship question to the census:
•

A shift from a redistricting determined using total population to adult population is
a radical departure from the federal ‘one person, one vote’ rule presenting used in
the United States.

•

Without a question on citizenship being included on the 2020 decennial census
questionnaire, the use of citizen voting age population is functionally unworkable.

•

The Obama Administration and congressional Democrats would probably be
extremely hostile to the addition of a citizenship question on the 2020 Decennial
questionnaire.

•

The chances of the U.S. Supreme Court mandating the addition of a citizenship
question to the 2020 decennial census are not high.

•

A switch to the use of citizen voting age population as the population base for
redistricting would be advantageous to Republicans and Hon-Hispanic Whites.

•

A proposal to use citizen voting age population can be expected to provoke a high
degree of resistance. 10

The plaintiffs suing the DOC over the citizenship question assert that Secretary Ross and
DOC officials had knowledge of Mr. Hofeller’s study before he decided to add a citizenship
question to the 2020 census. Further, the plaintiffs allege that the DOC shared the study with
Principal Deputy Assistant Attorney General John Gore, who signed a letter in which the DOJ
Letter from Hon. Wilbur Ross, Sec’y, Dep’t of Commerce, to Karen Dunn Kelley, Undersecretary for Economic
Affairs, Dep’t of Commerce (Mar. 26, 2018).
9
Thomas Hofeller was a Republican political consultant specializing in redistricting. Mr. Hofeller died in August
2018 and as part of the resolution of his estate, 18 hard drives of his work were passed to his daughter, Stephanie
Hofeller. Ms. Hofeller was estranged from her parents after she and her ex-husband were accused of involvement in
a series of domestic disputes and child abuse. Following these charges, Thomas Hofeller and his wife Kathleen were
granted custody of their 2 year-old grandson. According to the New York Times, Stephanie Hofeller is a “a political
progressive who despises Republican partisanship.” When Ms. Hofeller read her late father’s papers, she contacted
the Raleigh office of Common Cause, which is suing North Carolina over the state’s legislative maps that Thomas
Hofeller helped draw. These documents were then passed to the liberal plaintiffs in the Department of Commerce, et
al. v. State of New York, et al. lawsuit. See Michael Wines, Deceased G.O.P. Strategist’s Hard Drives Reveal New
Details on the Census Citizenship Question, N.Y. TIMES (May 30, 2019).
10
Thomas Hofeller, The Use of Citizen Voting Age Population in Redistricting, available at
https://www.brennancenter.org/sites/default/files/legal-work/2019-05-31-595-1-Unredacted%20Exhibits.pdf.
8

5

 requested the reinstatement of the citizenship question. 11 The DOJ and the DOC have strongly
disputed these allegations in filings in federal court, calling them “smoke and mirrors.” 12
The record before the Committee refutes and debunks the conspiracy claims surrounding
Mr. Hofeller’s study. The Committee has no evidence that the DOC or DOJ relied on the
Hofeller study. The Committee has conducted four transcribed interviews, and no witness had
even heard of Thomas Hofeller or his study until the study was the subject of media reports.
For example, on June 11, 2019, the Committee interviewed James Uthmeier, a former
Senior Counsel at DOC, who worked closely with Secretary Ross on the citizenship question.
Mr. Uthmeier was the author of a legal memorandum about the citizenship question, which he
provided to Secretary Ross and Principal Deputy Assistant Attorney General John Gore. Mr.
Uthmeier testified unequivocally that he did not have contact with Mr. Hofeller, nor did he recall
seeing anything written by Mr. Hofeller. Uthmeier testified:
Q.

Mr. Uthmeier, do you know who Thomas Hofeller is? Or Hoffler
[sic]?

A.

I am familiar with the name. But I do not know this individual, no.

Q.

Did you ever speak or communicate with him during the transition,
or any other time?

A.

I did not.

Q.

Have you ever read anything or seen anything written by him?

A.

No. To my knowledge, no, I have never seen anything written by
him.

Q.

Have you ever discussed him with anyone?

A.

I discussed him with counsel in preparation for this interview.
However, I had no other discussions. I was present for the deposition
of Mark Newman, where I also would have heard the name
mentioned.

Q.

Are you familiar with his 2015 study or report?

A.

I am not. 13

11
Unredacted Exhibits in Support of Motion for Order to Show Cause, New York v. United States Dep’t of
Commerce, no. 1:18-cv-02921-JMF (S.D.N.Y. May 31, 2019).
12
Department of Justice Response on Motion to Compel Defendants to Show Cause, State of New York v. United
States Department of Commerce, No. 18-cv-2921 (S.D.N.Y. June 3, 2019) (emphasis added).
13
James Uthmeier Transcribed Interview 12, June 11, 2019 (on file with Committee) [hereinafter “Uthmeier
interview”].

6

 Gene Hamilton, a senior administration official working on immigration issues at DOJ,
had direct knowledge about aspects of the decision-making process that led to the DOJ’s request
to reinsert the citizenship question on the 2020 census. Mr. Hamilton testified that he had “no
idea” who Hofeller was. He explained:
Q.

Did you ever hear of – did you ever speak to or hear of anyone
speaking to Thomas Hofeller?

A.

No.

Q.

Also a member of the transition team.

A.

Okay.

Q.

Doesn't ring a bell?

A.

No.

Q.

Okay.

Q.

That's H-o-f-e-l-l-e-r.

A.

He could spell it H-o-e-f-f-l-e-r, and I have no ideas [sic] who he
is. 14

The Committee also conducted a transcribed interview with Kris Kobach, former Kansas
Secretary of State. During the interview, Kobach testified:
Q.

Mr. Kobach, during the campaign or transition, did you ever discuss
adding a citizenship question to the 2020 census with Thomas
Hofeller?

A.

I don't recall ever meeting or talking with anyone by that name. I
just read an article yesterday about I think it was that – but – and my
recollection upon reading the article was that I've never heard of this
guy. 15
***

Q.

Mr. Kobach, were you aware of a 2015 study that Mr. Hofeller wrote
about the citizenship question?

Gene Hamilton Transcribed Interview 68, May 30, 2019 (on file with Committee) [hereinafter “Hamilton
interview”].
15
Kris Kobach Transcribed Interview 13, June 3, 2019 (on file with Committee) [hereinafter “Kobach interview”]
(emphasis added).
14

7

 A.

No, I've never read any such study or heard of any such study. As I
said, there was an article about that gentleman, I think I saw it
yesterday, that alluded to a study, but I'd never heard of it until I read
that article. 16

In addition, Kobach testified that he fundamentally disagreed with Hofeller’s assertions,
explaining: “I don't agree with his assumption that when you count – when you count accurately
the number of citizens, that that necessarily helps one party or another party. We don't know.” 17
Finally, although the Hofeller study was not publicly known at the time of the
Committee’s transcribed interview with Mr. Gore in March 2019, his testimony directly
contradicts any conspiracy theories about the “real” reasons for the reinstitution of the
citizenship question. Gore testified how specific, granular data about citizenship helps to enforce
the Voting Rights Act, explaining:
Q.

Can you help us understand how the lack of data prior to, I guess,
the current situation impacts the prosecution of Voting Rights Act
cases?

A.

So, as I've explained, we've been making do with the ACS
[American Community Survey] data –

Q.

Right.

A.

-- and extrapolating the ACS block group level estimates down to
the block level to identify potential investigations and enforcement
actions.

Q.

Right.

A.

There's, I think, an acknowledgment that the ACS data is an
estimate. The Census Bureau puts confidence intervals and margins
of error around it. And we don't bring cases unless we can win them.
So we've been able to file cases and litigate them under -- using the
ACS data.
We would like to get an additional source of data because there
may be districts or cases out there where that data provides a
clearer picture of what's going on at the block level and within a
particular district or redistricting plan, and we might be able to

16
17

Kobach interview at 79.
Kobach interview at 90 (emphasis added).

8

 identify additional cases for investigation and potential
prosecution. 18
IV.

The contempt citation improperly and baselessly implies a nefarious White
House connection to the decision to reinstitute a citizenship question

The contempt citation suggests the existence of a vast Republican conspiracy to reinstate
the citizenship question, one that was directed from the highest levels of the White House.
Chairman Cummings has said repeatedly that the White House has orchestrated a “cover up”
from the very “top.” 19 The Majority has sought to tie former Attorney General Jeff Sessions,
former White House advisor Steven Bannon, and other senior Trump Administration officials to
the effort to add a citizenship question to the census. 20 The record before the Committee,
however, does not support these charges.
Mr. Uthmeier unequivocally stated that no one from the White House ever asked or
directed him to seek the reinstatement of a citizenship question to the census. According to Mr.
Uthmeier, he was never instructed to consult with White House officials about seeking the
reinstatement of a citizenship question. Mr. Uthmeier further testified that he never spoke with
Stephen Miller, Steve Bannon, Reince Priebus, or President Trump about the decision to add a
citizenship question to the census. 21
Similarly, Mr. Gore testified he did not have interactions related to the citizenship
question with any of the senior Trump Administration officials whom the Majority believe were
involved in a conspiracy to misuse the census. Mr. Gore testified:
Q.

Were you aware of any conversations between Attorney General
Jeff Sessions and Steve Bannon about the addition of a citizenship
question?

A.

No.

Q.

Were you aware of any conversations with anyone else at the
Department of Justice and Kris Kobach about an addition of a
citizenship question?

A.

No.

John Gore Transcribed Interview 87-88, Mar. 7, 2019 (on file with Committee) [hereinafter “Gore interview”]
(emphasis added).
19
See Letter from Rep. Elijah Cummings, Chairman, H. Comm. on Oversight & Reform, to Hon. William Barr,
Attorney General, Dep’t of Justice (Jun. 3, 2019); Letter from Rep. Elijah Cummings, Chairman, H. Comm. on
Oversight & Reform, to Hon. Wilber Ross, Sec’y, Dep’t of Commerce (Jun. 3, 2019); Press Release, H. Comm. on
Oversight & Reform, Cummings Delivers Remarks on Resolution to Fully Enforce Committee Subpoenas and Hold
the Trump Administration Accountable (Jun. 11, 2019), https://oversight.house.gov/news/press-releases/cummingsdelivers-remarks-on-resolution-to-fully-enforce-committee-subpoenas-and.
20
Ross hearing, supra note 5, at 142-143 (statement of Rep. Carolyn Maloney, Member, H. Comm. on Oversight &
Reform).
21
Uthmeier interview at 134-135.
18

9

 Q.

Were you aware of any conversations between anyone at the
Department of Justice and Steve Bannon about an addition of a
citizenship question?

A.

No. 22
***

Q.

Did you ever speak with a little known official named Steve
Bannon?

A.

I have never spoken to Mr. Bannon in my life. 23
***

Q.

Have you ever had any discussions with Stephen Miller at the White
House?

A.

No, I have not.

Q.

There's a fellow by the name of Thomas Brunell?

A.

No, I have not, not on this issue.

Q.

But on different issues?

A.

Yes. I believe when I was in private practice, I had conversations with Mr.
Brunell connected to a voting rights case, but it had nothing to do with the census
or with the Department's request to reinstate a citizenship question on the census
questionnaire. 24

Like Mr. Uthmeier and Mr. Gore, Mr. Hamilton also testified he had no contact about the
citizenship question with many of the officials whom the Majority accuses of conspiring to add
the citizenship question. Hamilton testified:
Q.

Aside from the communications we just talked about, are you aware
of any communications with anybody at the White House that
related to the census citizenship question?

A.

Between whom?

Gore interview at 56.
Id. at 78.
24
Id. at 96-97.
22
23

10

 Q.

Between the White House and any agency. Are you aware of any
conversations involving the White House? I think we've talked
about a handful of conversations with John Zadrozny. Aside from
those, are you aware of any conversations?

A.

No, I don't think so.

Q.

What about Steve Bannon when he was at the White House?

A.

No. 25
***

Q.

Have you ever had any conversations with Stephen Miller about
census or citizenship question?

A.

I think I answered that earlier.

Q.

Just --

A.

I don't remember having any conversation with Stephen.

Q.

Did you ever become aware of him having conversations with
anyone else about census or a citizenship question?

A.

I couldn't tell you. 26
***

Q.

Did you have any cause to or had you ever had any other discussions
with James Uthmeier about other topics or about topics in general?

A.

No. I don't recall having any discussions with James Uthmeier or
Brian Lenihan. I couldn't pick them out of a lineup. 27
***

Q.

Have you ever had discussions with Peter Davidson from the
Department of Commerce?

A.

I don't think – I don't think so. I don't recall. 28

Hamilton interview at 64.
Id. at 66.
27
Id. at 53.
28
Id. at 53-54.
25
26

11

 ***

29

Q.

Did you ever have any conversations with someone named Mark
Neuman about the citizenship question?

A.

What was the name?

Q.

Mark Neuman.

A.

No.

Q.

Do you know who that is, N-e-u-m-a-n, Mark Neuman?

A.

No.

Q.

He's a member of the President's transition team?

A.

Mark Neuman? No.

Q.

He also apparently served as some kind of outside adviser to the
Department of Commerce on the issue of the citizenship question?

A.

I have no idea who he is.

Q.

Do you remember ever hearing that there were – that there was more
outside advisers providing advice or guidance to the Department of
Commerce or to the Department of Justice —

A.

No.

Q.

— relating to the citizenship question?

A.

Huh uh, no. 29

Q.

[S]o you mentioned that you had a discussion with Mr. Kobach
during the transition about the citizenship question, correct, or you
got an email from him?

A.

I got an unsolicited email from him.

Q.

Did you have any further conversations with him after the transition
about this topic?

***

Id. at 67.

12

 A.

No. 30

Finally, Mr. Kobach also testified that he had no contact about the citizenship question
with many of the individuals who the Majority contends were central figures in the decision to
add the citizenship question. The Majority even went as far as to ask Kobach if he spoke with the
Republican National Committee about the citizenship question; Kobach responded that he had
not. Kobach testified:
Q.

Did you ever speak with Earl Comstock at the Department of
Commerce?

A.

What was the first name?

Q.

Earl, and his last name is Comstock.

A.

I don't recall ever speaking to that person. The name doesn't sound
familiar.

Q.

Did you ever speak with Peter Davidson, the general counsel at the
Department of Commerce?

A.

I don't specifically recall, but as I mentioned earlier, there was one
– there was one individual, a male, who informed me about the
notice and comment period, that if I wanted to send an official letter,
I could, and I don't remember that person's name.

Q.

Okay. Did you ever speak with James Uthmeier at the Department
of Commerce, the Deputy General Counsel?

A.

I don't remember that name. It is certainly possible that one of those
people was the one I spoke to on the phone, but I don't remember
those names specifically. 31
***

Q.

During the campaign or transition, did you ever discuss adding a
citizenship question to the 2020 census with a transition official
named Mark Neuman, and I'm happy to spell that if that's helpful.

A.

I don't recall anybody named Mark Neuman. It's possible I met him
and forgot him, but that name does not ring a bell at this time. 32
***

Id. at 68.
Kobach interview at 69.
32
Id. at 12.
30
31

13

 V.

Q.

Have you ever had any conversations regarding the citizenship
question with anybody at the Republican National Committee?

A.

No. 33
The contempt citation fails to note the protections in federal law prohibiting the
unauthorized use of census data

The contempt citation ignores protections entrenched in federal law on the unauthorized
use of census data. The purpose of the Census Bureau and all census surveys is to collect data
used for apportionment and to better inform the public about the population, business, and
economics of the United States. Title 13 of the U.S. Code protects all data provided to the
Census Bureau. Disclosure of census data is a very serious federal crime punishable by five years
in prison and a $250,000 fine. 34 All officers, employees (permanent and temporary), contractors,
volunteers, or anyone else handling census data must sign a lifetime oath to keep the data
confidential. 35
Once responses are collected, the Census Bureau goes to great lengths to ensure that any
statistical data is anonymized and cannot be traced back to an individual person or household.
Additionally, the Census Bureau does not share individual response information with other
federal or state agencies. Data sets gleaned from responses may be shared with other agencies,
but only for statistical purposes and only if the agency has requested the data from the Secretary
of Commerce.
The Majority and others suggest that the responses to the citizenship question could be
used for law enforcement or immigration proceedings. In the 1940s, census data was used to
locate Japanese-Americans for relocation to internment camps. 36 However, in the 70 years since
this tragedy, Congress has acted to codify and strengthen Title 13 privacy protections. Such
disclosures would be unlawful today. At a Committee hearing in 2018, the DOJ and DOC
refuted assertions that data would be used for law enforcement or immigration proceedings. 37
Since then, the Committee has heard repeated testimony reinforcing the fact that
information obtained from the citizenship question cannot and will not be used for any law
enforcement proceeding. For example, Mr. Hamilton testified:

Id. at 96.
13 U.S.C. § 214 (1994).
35
In 2018, Committee staff traveled to Rhode Island to conduct oversight of the 2018 Census Test. Committee staff
was required to sign documents swearing not to disclose any private information, in perpetuity, which the staffer
may come in contact over the course of the time conducting oversight.
36
Lori Aratani, Secret use of census info helped send Japanese Americans to internment camps in WWII, WASH.
POST (Apr. 6, 2018).
37
Progress Report on the 2020 Census: Hearing Before the H. Comm. on Oversight and Gov’t Reform, 115th Cong.
57-58 & 80-81 (May 8, 2018) (statement of Earl Comstock, Dept. of Commerce).
33
34

14

 Q.

Are you aware of any conversations that happened within the
administration about whether adding a citizenship question would
impact immigration policy or immigration enforcement?

A.

No.

Q.

Were you aware of any documents that came from the Department
of Commerce to the Department of Justice about the citizenship
question issue?

A.

No.

Q.

So you said you were not aware of any discussions about the
citizenship question impacting immigration policy. Is that correct?

A.

I don't recall having any discussions about that.

Q.

Okay. How about impacting immigration enforcement?

A.

I don't recall having any discussions about that. 38

Mr. Hamilton later expressly stated, “this citizenship question on the census has nothing to do
with illegal immigration.” 39
Likewise, Mr. Uthmeier explained the statutory protections surrounding census response
information. He testified:

38
39

Q.

Do you recall the penalties under Title 13 for disclosing confidential
responses to the citizenship question?

A.

I only recall that there are significant penalties, but I cannot
remember specifics, no.

Q.

If I told you that the penalties were 5 years in prison and a $250,000
fine, would that be consistent with your research into the topic?

A.

Yes, that sounds right.

Q.

Okay. To your knowledge, will the responses to the 2020 census
question on citizenship be used by either the Department of Justice,
the Department of Commerce, or any other law enforcement agency
in any judicial proceeding?

Hamilton interview at 71-72.
Id. at 80 (emphasis added).

15

 A.

To my knowledge the data is not allowed to be used for those
purposes pursuant to Federal law.

Q.

And to your knowledge, would responses to the 2020 census
question be permitted to be used in any immigration or deportation
proceeding?

A.

No.

Q.

If such information were to be used, either in a judicial proceeding,
deportation proceeding, or other immigration related proceeding,
and the Department of Commerce found out about it, what do you
believe the Department's response would be?

A.

Can you ask that question one more time?

Q.

Sure. If the Department of Commerce became aware that data from
the census was used in any sort of judicial deportation or
immigration proceeding, what do you think the Department's
response would be to that disclosure?

A.

I don't want to speculate for the Department, but I can tell you if I
was still there in my capacity as a senior lawyer, I would ask the
Department of Justice to take immediate action.

Q.

So when you were [at the Department of Commerce], you believe
that if the census data was disclosed, you would recommend the
Department immediately refer a criminal case to the Department of
Justice?

A.

Yes. Yes, absolutely. The Title 13 protections are imperative to
data collection to ensure that people across the country feel
comfortable providing information to the government. The data
and studies show that Americans are generally suspect of the
government coming in to their homes and asking questions about
anything. So Title 13, we certainly at Commerce, I know the Census
Bureau had some advertising that they were working on, that tries
to make it known to the public, that this data cannot be used for
anything other than statistical collection purposes, and it cannot be
used for law enforcement or immigration purposes.
I wish that attorneys general in all the States were also echoing
that information rather than startling people through, you know,
negative press and, you know, allegations. 40

40

Uthmeier interview at 113-114 (emphasis added).

16

 VI.

The contempt citation fails to note that a citizenship question on the census is not
new

During the Committee’s business meeting to consider the contempt citation, Rep. Ralph
Norman (R-SC) offered an amendment to provide necessary context that soliciting citizenship
information on a census is not new. The Committee did not approve this amendment, and
therefore the contempt citation fails to recognize this important context.
Every decennial census from 1820 to 1950 asked about citizenship. From 1970 to 2000,
the Census Bureau mailed a “long-form census” with the decennial census to five percent of
American households. 41 In addition to asking the 10 basic census questions on the short form,
the long-form census asked more expansive questions about a person’s dwelling and the
composition of the household. From 1970 to 2000, each long-form census asked a citizenship
question.
After the 2000 census, the Census Bureau replaced the long-form census with the
American Community Survey (ACS). 42 Unlike the long-form census, the Census Bureau
conducts the ACS on a continuing, annual basis, sending the survey to about 3.5 million
households each year. 43 The ACS includes expanded questions on demographics, dwelling unit,
and household composition, as well as a series of detailed citizenship questions. 44 The proposed
question about citizenship on the 2020 census is similar to the question posed on the annual ACS
survey.
Until Secretary Ross’s decision to reinstate a citizenship question on the 2020 census,
there had been no constitutional challenge to the inclusion of a citizenship question on prior
decennial censuses or the ACS.
VII.

The contempt citation fails to note that state and federal entities regularly solicit
citizenship information for a variety of reasons

The contempt citation ignores the simple truth that a variety of agencies—at the federal
and state level—currently solicit and collect citizenship data for a variety of reasons, including
employment and licensure. For example:
•

The U.S. Citizenship and Immigration Services requires each prospective employee
in the United States to submit an Employment Eligibility Verification Form (I-9
form), which asks about the employee’s citizenship status; 45

U.S. Census Bureau, History of Questionnaires available at
https://www.census.gov/history/www/through_the_decades/questionnaires/.
42
U.S. Census Bureau, History: American Community Survey, available at
https://www.census.gov/history/www/programs/demographic/american_community_survey.html.
43
Id.
44
U.S. Census Bureau, American Community Survey: Questions on the Form and Why We Ask, available at
https://www.census.gov/acs/www/about/why-we-ask-each-question/.
45
Dep’t of Homeland Security, U.S. Citizenship & Immigration Servs., Employment Eligibility Verification,
https://www.uscis.gov/system/files_force/files/form/i-9-paper-version.pdf.
41

17

 •

The District of Columbia solicits citizenship status for individuals applying for a
driver’s license; 46

•

The state of Wisconsin similarly requests citizenship status for individuals applying
for a driver’s license; 47

•

The state of California asks about an individual’s citizenship when applying to obtain
a firearm; 48 and

•

The state of Ohio requires an applicant for a concealed-carry license to state his or her
citizenship.49

In addition, the collection of citizenship information during a population census is a
common practice among countries. In fact, as part of its principles and recommendations for
population censuses, the United Nations recommends that countries gather citizenship
information about its population. 50 As Secretary Ross testified during the Committee’s hearing:
The United Nations has recommended that countries ask the
citizenship question or some form of it, and many countries do. I
believe I mentioned a few. Australia, Canada, France, Germany,
Ireland, Mexico, and the United Kingdom are a few that occurred to
me offhand. 51
VIII. The contempt citation makes unfounded and conclusory assertions about
Executive Privilege
The contempt citation, as amended during the business meeting, makes several
unfounded legal conclusions about the sufficiency of the President’s protective assertion of
executive privilege. This protective assertion is only a result of the Committee’s rush to
contempt.
On June 12, 2019, Attorney General Barr sent a letter informing the Committee:

46
D.C. Dep’t of Motor Vehicles, DC Driver License or Identification Card Application,
https://dmv.dc.gov/sites/default/files/dc/sites/dmv/publication/attachments/DMV%20BOE%20Application_2-2519.pdf.
47
Wisc. Dep’t of Transportation, Wisconsin Driver License (DL) Application,
https://wisconsindot.gov/Documents/formdocs/mv3001.pdf.
48
CA Dep’t of Justice, Bureau of Firearms, Personal Firearms Eligibility Check Application,
https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/pfecapp.pdf.
49
State of Ohio, Application for a License to Carry a Concealed Handgun,
https://www.ohioattorneygeneral.gov/Files/Forms/Forms-for-Law-Enforcement/Concealed-Carry-License-andRenewal-Application.aspx.
50
United Nations, Principles and Recommendations for Population and Housing Censuses (2017),
https://unstats.un.org/unsd/demographic-social/Standards-andMethods/files/Principles_and_Recommendations/Population-and-Housing-Censuses/Series_M67rev3-E.pdf.
51
Ross hearing, supra note 5, at 64 (statement of Wilbur Ross, Secretary, Department of Commerce).

18

 the President has asserted executive privilege over certain
subpoenaed documents identified by the Committee . . . as well as
drafts of the Department’s December 12, 2017 letter to the U.S.
Census Bureau . . . . [T]his protective assertion ensures the
President’s ability to make a final decision whether to assert
privilege following a full review of these materials . . . . Regrettably,
you [Chairman Cummings] have made these assertions necessary by
your insistence upon scheduling a premature contempt vote. 52
The contempt citation concludes that the President waived the privilege because he did
not comply with the Committee’s rules for invoking a privilege. This characterization of an
imputed waiver for a constitutional privilege is baseless. The Supreme Court held in United
States v. Nixon that executive privilege is “fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution.” 53
Additionally, in In re Sealed Case, the Court of Appeals for the District of Columbia
Circuit examined whether the White House had waived executive privilege when it released a
White House Counsel’s report. In its ruling, the court reasoned that “[s]ince executive privilege
exists to aid the governmental decisionmaking process, a waiver should not be lightly
inferred.” 54 The court ultimately determined that the White House had not waived executive
privilege as to the documents generated in producing the final version of the released report but
had waived the privilege as to documents it had voluntarily revealed to parties outside the White
House. 55
As a “fundamental” privilege rooted in constitutional separation of powers, executive
privilege ought to be afforded serious consideration. In addition, because an executive privilege
waiver should not be lightly inferred, the Committee should be careful in inputing a waiver for
failure to comply with Committee Rule 16(c). The Committee’s contempt citation errs in
concluding unilaterally that executive privilege can be waived when the President does not
invoke executive privilege in accordance with Committee rules.
IX.

The contempt citation shows how Chairman Cummings has changed his view on
contempt of Congress under the Trump Administration

Chairman Cummings’s position on holding executive branch officials in contempt of
Congress has changed since the last time the Committee held an Attorney General in contempt of
Congress. In 2012, the then-Committee on Oversight and Government Reform held former
Attorney General Eric Holder in contempt of Congress for failing to produce documents related
to the Committee’s Fast and Furious investigation. At the time, the Obama Administration had
stonewalled the Committee’s subpoena for documents for over a year. During debate, then
Ranking Member Cummings said:
52
Letter from Stephen Boyd, Assistant Attorney General, Dep’t of Justice, to Rep. Elijah Cummings, Chairman, H.
Comm. on Oversight & Reform (Jun. 12, 2019).
53
United States v. Nixon, 418 U.S. 683, 707-08 (1974).
54
In re Sealed Case, 121 F.3d 729, 741 (1997).
55
Id. at 740-742.

19

 And there is something going on here that really should bother all
of us, and that is that, you know, we do have an Attorney General
who, just like we did, swear to uphold the Constitution of the United
States, and it seems to be a presumption that when certain privileges
are asserted, certain concerns are raised by that Attorney General
with regard to deliberative documents that things have gone between
staff and things that have traditionally been privileged, that so he has
to be hiding something, that he has to be dishonest.
And I think we do have to respect the separation of powers here.
And so, you know, this whole idea, everybody, oh, what is he
hiding? Well, I don't think he is hiding a damn thing. 56
Now, however, Chairman Cummings has held Trump Administration officials in
contempt of Congress after only two months while the Committee continues its fact-finding and
the Trump Administration continues to cooperate with the Committee’s investigation. Whereas
Chairman Cummings believed in 2012 that then-Attorney General Holder was not hiding a
“damn thing” by withholding documents, the Chairman now believes these actions “beg[] the
question−what is he hiding?” 57
Similarly, while in the minority, then-Ranking Member Cummings often asserted
ongoing litigation was a reason for the Obama Administration to withhold documents from the
Committee. On June 16, 2011, then-Ranking Member Elijah Cummings urged former Chairman
Issa that “the Committee should wait until the case is no longer pending” before moving forward
with testimony. 58 In another letter dated, November 9, 2011, then-Ranking Member Cummings
wrote:
As I have said repeatedly, I believe it is an inappropriate use of
Committee resources to interfere with this ongoing legal action in
order to benefit the corporate interests of a single company. . . . The
ongoing legal proceeding should be allowed to take its full course

56
Report recommending that the House of Representatives find Eric H. Holder, Jr., Attorney General, U.S.
Department of Justice, in contempt of Congress: Full Committee Business Meeting, 112th Cong. 127 (2012)
(statement of Rep. Elijah E. Cummings, Ranking Member, H. Comm on Oversight & Gov’t Reform) (emphasis
added).
57
Press Release, H. Comm. on Oversight & Reform, Cummings Delivers Remarks on Resolution to Fully Enforce
Committee Subpoenas and Hold the Trump Administration Accountable (Jun. 11, 2019),
https://oversight.house.gov/news/press-releases/cummings-delivers-remarks-on-resolution-to-fully-enforcecommittee-subpoenas-and.
58
Letter from Rep. Elijah Cummings, Ranking Member, H. Comm. on Oversight & Gov’t Reform and Rep. George
Miller, Ranking Member, H. Comm. on Ed. & Workforce, to Rep. Darrell E. Issa, Chairman, H. Comm. on
Oversight & Gov’t Reform (Jun. 16, 2011),
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2011-0616.GM%20and%20EEC%20Letter%20to%20Issa.NLRB__0.pdf.

20

 without any further interference from Members of Congress
(emphasis added). 59
Now in the majority, Chairman Cummings has shifted his position. For example, during
the March 2019 hearing with Secretary Ross, Chairman Cummings demanded full cooperation
despite the ongoing litigation:
I expect Secretary Ross to fully answer all of our questions about
the census and not avoid our questions based on the meritless
claim that there is a separate—there’s separate litigation going on
(emphasis added). 60
In his concluding remarks in March 2019, Chairman Cummings expressed his frustration with
Secretary Ross declining to answer certain questions that pertained to information involved in
pending litigation before the Supreme Court:
But today when I heard your testimony, I felt like you were trying
to pull a fast one on me. I’ve got to be honest with you, man. You
went back to the old argument about ongoing litigation. I was a little
disappointed . . . . And let me make this clear so that there would be
absolutely no doubt, Mr. Secretary. This committee does not accept
the argument that you can withhold documents or testimony from
us because you have other separate litigation. That is not a valid
basis to withhold information from the Congress of the United States
of America. 61
X.

The contempt citation is flawed because Chairman Cummings did not distribute
the business meeting memorandum within the period required by Committee
rules

The contempt citation is procedurally flawed in that Chairman Cummings did not
distribute to Committee Members a copy of the memorandum specifying the Committee’s
business meeting as required by Committee rules. Rather than postpone the business meeting to
cure this procedural defect, the Chairman offered an unpersuasive ex post facto interpretation of
the relevant Committee rule—an interpretation contradicted by Chairman Cummings’s prior
statement about the rule.
Under Rule 2(f) of the Committee’s rules, the Chairman must provide “ever member of
the Committee . . . with a memorandum at least three calendar days (excluding Saturdays,

59
Letter from Rep. Elijah Cummings, Ranking Member, H. Comm. on Oversight & Gov’t Reform, to Rep. Darrell
E. Issa, Chairman, H. Comm. on Oversight & Gov’t Reform (Nov. 9, 2011),
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2011-1109.EEC%20to%20Issa.Boeing-NLRB.pdf.
60
Ross hearing, supra note 5, at 29 (statement of Chairman Elijah E. Cummings).
61
Id. at 204 (statement of Chairman Elijah E. Cummings) (emphasis added).

21

 Sundays, and legal holidays . . .) before each meeting or hearing.” 62 On Monday, June 10, 2019,
at 5:48 p.m., Chairman Cummings noticed a business meeting for Wednesday, June 12, 2019, at
10:00 a.m. to consider the contempt citation. He distributed the business meeting’s agenda at the
same time. Pursuant to Rule 2(f), however, the memorandum for the business meeting scheduled
for Wednesday, June 12 should have been distributed no later than Friday, June 7. 63
On June 11, 2019, Ranking Member Jordan wrote to Chairman Cummings to alert him
that the delayed agenda had violated Committee rules and called into question the legal
sufficiency of the contempt proceeding. 64
On June 12, 2019, Chairman Cummings responded to Ranking Member Jordan, offering
for the first time a new interpretation of Rule 2(f) in which the three days period under Rule 2(f)
would “includ[e] the day on which the notice is sent and the day on which the business meeting
is scheduled to occur.” 65 The Chairman noted that the Committee modified Rule 2(f) at the
beginning of the 116th Congress, changing the rule’s wording from “at least 72 hours before
each meeting or hearing” to “at least three calendar days . . . before each meeting or hearing.” 66
Chairman Cummings wrote that the Committee made this change to “conform the Committee’s
rules to the rules of the House” regarding hearing notice. 67 As such, Chairman Cummings
concluded, the memorandum was sufficiently noticed.
Chairman Cummings’s explanation is unpersuasive in two respects. First, if the
Committee intended to amend Rule 2(f) to confirm to the rules of the House, the Committee
could have adopted verbatim the language found in the rules of the House. The Committee did
not, choosing instead to adopt different language for Rule 2(f). Second, in explaining the
justification for the change to Rule 2(f) at the beginning of the 116th Congress, Chairman
Cummings specified then that the change was intended to provide “more advance notice for
hearing memos.” 68 Yet, the Chairman’s interpretation as articulated on June 12 would actually
provide less notice—effectively two days—than what was required before the change.
62
H. Comm. on Oversight & Reform R. 2(f) (emphasis added). This requirement is separate from the notice
requirement under Committee Rule 2 (e). Id. at R. 2(e) (citing House of Representatives R. XI, cl. 2(g)(3)(A)). Rule
2(e) incorporates House Rule XI, clause 2(g)(3)(A), which states that a committee meeting “may not commence
earlier than the third calendar day (excluding Saturdays, Sundays, and legal holidays . . .) on which members have
notice thereof.” House of Representatives R. XI, cl. 2 (g)(3)(A)(ii) (emphasis added).
63
This timing has been the Committee’s practice. See e.g., Business Meeting of the H. Comm. on Oversight &
Reform, 116th Cong. (May 8, 2019) (memorandum distributed May 3, 2019); Business Meeting of the H. Comm. on
Oversight & Gov’t Reform, 115th Cong. (Sept. 27, 2018) (memorandum distributed September 24, 2018); Business
Meeting of the H. Comm. on Oversight & Gov’t Reform, 115th Cong. (July 17, 2018) (memorandum distributed
July 12, 2018); Business Meeting of the H. Comm. on Oversight & Gov’t Reform, 115th Cong. (May 23, 2018)
(memorandum distributed May 18, 2018); Business Meeting of the H. Comm. on Oversight & Gov’t Reform, 115th
Cong. (Mar. 15, 2018) (memorandum distributed March 12, 2018); Business Meeting of the H. Comm. on Oversight
& Gov’t Reform, 115th Cong. (Feb. 6, 2018) (memorandum distributed February 1, 2018).
64
Letter from Rep. Jim Jordan, Ranking Member, H. Comm. on Oversight & Reform, to Rep. Elijah E. Cummings,
Chairman, H. Comm. on Oversight & Reform (Jun. 11, 2019).
65
Letter from Rep. Elijah E. Cummings, Chairman, H. Comm. on Oversight & Reform, to Rep. Jim Jordan, Ranking
Member, H. Comm. on Oversight & Reform (Jun. 12, 2019).
66
Id.
67
Id. (citing House Rule XI, clause 2(g)(3)(A)).
68
Business Meeting of the H. Comm. on Oversight & Reform, 116th Cong., 13 (Jan. 29, 2019) (statement of
Chairman Elijah E. Cummings).

22

 In the Majority’s haste to manufacture a controversy around the citizenship question, the
Committee violated its rules by failing to distribute the memorandum “at least three calendar
days . . . before” the meeting. Because the Majority declined to postpone the business meeting to
cure this procedural defect, this defect calls into question the legal sufficiency of the contempt
proceeding.
XI.

Conclusion

The Committee’s contempt citation will only harm the Committee’s investigation into the
citizenship question. By taking this step, the Majority has all but shut the door on obtaining the
information it seeks. The Majority has chosen conflict over compromise.
A careful examination of the record before the Committee and publicly available
information does not support contempt at this time. A question soliciting citizenship information
has appeared on the census in one form or another since 1820. Federal and state agencies request
citizenship information regularly for a variety of legitimate purposes. Other countries solicit
citizenship information in their population censuses—a practice that the United Nations
recommends as a best practice. Most importantly, any citizenship information obtained during
the census is protected by federal law and cannot be used for any improper purpose.
Although the Majority resorts to conspiracy theories to delegitimize the reinstitution of a
citizenship question on the census, these conspiracies are not supported by the facts of the
Committee’s investigation. The Committee has received testimony from several Administration
officials to date showing that there was no direction from the White House to add a citizenship
question to the census. In addition, several witness with firsthand knowledge of the decisionmaking process testified that they had no knowledge of a study—or its author—alleged to be the
keystone in the nefarious conspiracy.
The Majority simply does not want to know the number of citizens present in the United
States of America. Rather than attempt to legislate on the citizenship question, the Committee is
using its oversight authority to create a controversy in the hopes of influencing the Supreme
Court’s imminent decision on the issue. For all the reasons set forth in these minority views, the
Committee’s contempt citation is unnecessary, premature, and designed merely to advance
partisan political goals.
JIM JORDAN
Ranking Member

23