Justice Department filing appears to contradict commerce secretary testimony to Congress
Posted October 11, 2018 5:42 p.m. EDT
Updated October 12, 2018 4:59 p.m. EDT
(CNN) — An admission by the Justice Department is renewing questions about whether Commerce Secretary Wilbur Ross told Congress the truth about the controversial citizenship question on the 2020 census.
Steve Bannon, who was at the time a top adviser to President Donald Trump, contacted Commerce Secretary Wilbur Ross in the spring of 2017 and asked him to talk with Kansas Secretary of State Kris Kobach, who led the administration's review of alleged voter fraud, about including a citizenship question on the census, according to a court filing.
Ross, however, told Congress a different story at two congressional hearings in March 2018.
"Has the President or anyone in the White House discussed with you or anyone on your team about adding this citizenship question?" asked Rep. Grace Meng, a New York Democrat.
Ross replied: "I'm not aware of any such."
Two days at another hearing, Ross said, "The Department of Justice, as you know, initiated the request for inclusion of the citizenship question."
A Commerce Department spokesman, who spoke on the condition of anonymity, said Ross' comments before Congress were not misleading, saying the Justice Department "response supplements the record but does not change the secretary's story, it only adds to it."
Meng has made clear on her social media that she feels like she was "lied to" during the hearing.
"Hate being lied to! Very displeased to learn that @SecretaryRoss lied to me on the origins of adding a citizenship question to the #2020Census at a hearing this spring. Not a tough question, but I guess when you're in company with Steven Bannon, you've got to cover it up?" Meng tweeted, quoting a tweet from Chris Lu, a former deputy secretary of labor under President Barack Obama.
In the March hearings, Ross spoke on at least three other occasions of the citizenship question request as coming from the Justice Department, rather than from the White House.
"We are responding solely to the Department of Justice's request, not to any campaign request," he said on one of those occasions, when asked if the question had been influenced by the Trump campaign.
The filing also says Ross spoke with Attorney General Jeff Sessions about the question "in the Spring of 2017 and at subsequent times."
Earlier this summer, emails were released as part of discovery in a lawsuit filed by a group of state attorneys general who are challenging the addition of the question to the 2020 census.
One of the emails, dated April 2017, was from Brooke Alexander, a senior adviser in the Commerce Department, to the wife of Commerce Secretary Wilbur Ross. "Steve Bannon has asked that the Secretary talk to someone about the census," Alexander wrote in the email. "He could do it from the car on the way to a dinner."
An appellate court has ordered that Ross be deposed as part of the lawsuit.
The Justice Department is fighting the order and has taken the question to the Supreme Court.
On Thursday, New York and several other states filed a brief with the high court urging the justices to allow Ross' deposition, which the court has blocked for now.
"Today's response supplements the record but does not change the Secretary's story, it only adds to it," a Commerce Department spokesman said in an email.
As a part of pretrial discovery, the states are seeking to learn more about the rationale behind the administration's decision. The challengers in the lawsuit allege the administration used concerns about the Voting Rights Act as a pretext to hide animus against certain ethnicities.
"The Secretary's deposition is thus the only means by which the district court can obtain critical facts about the rationale that animated the Secretary's extensive efforts to add the citizenship question — facts that are central to understanding the Secretary's actual rationale, evaluating plaintiffs' claims of pretext, and ultimately determining whether the Secretary's decision was arbitrary and capricious," New York Attorney General Barbara Underwood wrote.
The challengers believe that while Ross has said the added question was necessary to comply with the Voting Rights Act, the real intention was to reduce the representation of immigrant populations. They argue that the question will negatively impact the response rate for noncitizens, who may be too afraid to come forward. The trial is set to start November 5.
In response, the Department of Justice is asking the Supreme Court to reverse the lower courts and block the deposition. The Justice Department has maintained that the administrative record, not Ross' mental state, should be a factor in the case.
"Absent a stay, these high-level Executive Branch officials will be forced to prepare for and attend these depositions, and those harms cannot be undone by an eventual victory on the merits, " Solicitor General Noel Francisco argued in court papers earlier in the week.
It would take five justices to grant the government's request, and the court could rule as early as Thursday.
CNN previously reported that Ross testified before the House earlier this year that the Department of Justice had "initiated the request for inclusion of the citizenship question." In his March memo, Ross said he "set out to take a hard look" at re-adding the question following the Justice Department's request.
In a lower court opinion, Judge Jesse Furman wrote, "The record developed thus far, however, casts grave doubt on those claims." He noted that Ross, "by his own admission," began considering reinstating a citizenship question shortly after his confirmation in February 2017, but before the Department of Justice's formal request on December 12, 2017.
This story has been updated.