The House has referred criminal contempt of Congress charges to the Department of Justice for prosecution. In the short term, at least, we should prepare for more frustration, which was foreseeable. But maybe there can be some accountability this time.
The House Oversight and Government Reform has investigated for months the Commerce Department’s decision to add a citizenship question to the 2020 census (the Census Bureau is part of Commerce). Commerce and DOJ said that Commerce added the question at DOJ’s request to help with enforcement of the Voting Rights Act. Civil rights groups said the real purpose, and the only purpose, was to intimidate non-citizens and relatively recent legal immigrants in order to inhibit their response to the census. According to experts, a citizenship question would likely result in an undercount of 6.5 million, disproportionately Latino.
State and local governments and civil rights groups challenged the addition of the question in court and won. First a federal trial judge and then the Supreme Court found that the reason that Commerce and DOJ gave for the question, to help DOJ enforce the Voting Rights Act, was “pretextual,” “contrived,” and “more of a distraction” than a credible rationale. The evidence showed that Commerce decided to include the question “for reasons unknown but unrelated to the VRA.”
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In other words, the federal courts determined that the rationale for the question that Commerce and DOJ officials gave under oath—Commerce Secretary Wilbur Ross in testimony before Congress and others in court proceedings—was false. False testimony under oath is perjury.
Neither the trial court nor the Supreme Court found that Commerce had a “discriminatory purpose,” just that Commerce and DOJ had not given any credible rationale, which was enough to strike the question. People don’t dream up pretexts when there’s another perfectly good reason, however.
There was ample evidence of the real reason for the question. On May 30, the plaintiffs in the citizenship question lawsuit wrote the trial court that new evidence showed that a Republican consultant, Thomas Hofeller, “played a significant role in orchestrating the addition of the citizenship question.” Hofeller died in 2018, and a trove of emails and other documents about the citizenship question were discovered on his computer—including a private study in 2015 that found that the question would inhibit response to the Census by Latinos, in particular, and that “would create a structural electoral advantage” for “Republicans and Non-Hispanic Whites” that “would clearly be a disadvantage to the Democrats.”
The documents showed that Hofeller suggested that Commerce ask the DOJ to request that the census include a citizenship question to help DOJ enforce the Voting Rights Act, and even ghostwrote DOJ’s letter that made the request.
The plaintiffs said that the new evidence contradicted “the sworn testimony…on central issues in this case.” The new evidence showed that testimony by two of the administration’s principal witnesses, Mark Neuman, a senior advisor to Ross, and John Gore, a senior DOJ official, was “materially misleading.” The plaintiffs said the new evidence showed the “discriminatory purpose” for the question. The new evidence, the plaintiffs said, showed that “both Neuman and Gore falsely testified about the genesis of DOJ’s request to Commerce in ways that obscured the pretextual character of the request.”
The House OGR Committee, after protracted and fruitless negotiation, issued subpoenas to Ross and Attorney General William Barr for documents related to the decision to add the citizenship question. DOJ and Commerce asserted that the subpoenaed documents are privileged and refused to comply with the subpoenas. “The key remaining issue is how the departments and the committee will address the material that is protected by privileges that have been repeatedly affirmed by the courts,” Barr and Ross wrote Speaker Nancy Pelosi. “There is no information to hide; there are institutional integrities to preserve.”
That sounds so principled. Is perjury one of Commerce’s and DOJ’s “institutional integrities”? Is discrimination against Latinos?
The House voted to refer criminal contempt of Congress charges against Barr and Ross to DOJ to prosecute. DOJ will not prosecute, of course.
The House also voted to bring a lawsuit to enforce the Committee subpoenas, which will take months even if the court expedites the litigation.
DOJ will not prosecute Ross or Neuberg or Gore for perjury either, nor does there appear to be any other consequence that would matter to them. The effort to add the citizenship question is a scandal, but the most scandalous part is that hardly anyone seems scandalized. We are so numbed to flagrant lies on Twitter, at rallies, on the White House lawn, and in interviews with Fox and Friends that false testimony under oath in legal proceedings just seems like more of the same. On the right, the only criticism is that Ross, Neuberg and Gore did not lie to the courts more convincingly.
There may be a means for accountability for at least some of the conduct, however. Gore has a law license.
The Senate decided that Bill Clinton’s false testimony in the special prosecutor’s investigation and the Paula Jones lawsuit did not merit removal from office, but the false testimony was not without consequence. At the end of his presidency, Clinton made a deal that federal prosecutors would not prosecute him for perjury or obstruction of justice, and he would give up his law license. The Arkansas Supreme Court suspended Clinton’s license for five years, and the United States Supreme Court disbarred him. Clinton had no plans to practice law in Arkansas or elsewhere, of course, and never sought reinstatement.
Who can file a grievance with the District of Columbia Bar for Gore’s conduct? All God’s children. Members of the House OGR Committee can; the lawyers in the citizenship question lawsuit can; anyone can.
Neither the federal trial court nor the Supreme Court used the word “perjury,” but both found that the reason for the citizenship question that Gore testified under oath was the true reason, was not the true reason. Gore signed and sent DOJ’s letter that requested that Commerce add the citizenship question. He had to know if DOJ really wanted the citizenship data to enforce the Voting Rights Act, or if DOJ made the request to give Commerce cover.
Perjury is tough to prove and should be. Witnesses are very rarely prosecuted for perjury for testimony that is disbelieved and even more rarely convicted. Professional misconduct by lawyers is a different matter. It is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” or “conduct that seriously interferes with the administration of justice.” Professional misconduct must be proved by “clear and convincing evidence,” a tough standard but not nearly as tough as proof “beyond a reasonable doubt” required for a criminal conviction.
The issue has little political oomph. Gore’s name identification with the public could only be stated as a raw number, not as a percentage. Democratic crowds are unlikely to chant “TAKE HIS LICENSE! TAKE HIS LICENSE!”
But the rule of law may only survive the Trump administration if officials draw the line somewhere, like perjury. They will only draw that line if there are consequences for some conduct.
Perjury cannot be normal.
