Second Circuit Clears Deputy AG to Testify in Census Case

MANHATTAN (CN) – Forecasting the likelihood that Trump’s commerce secretary won’t be able to duck testifying in New York court about his shakeup of the 2020 decennial census, the Second Circuit on Tuesday shot down the Department of Justice’s attempt to block another official’s deposition.

Issuing a two-page opinion on the same day they heard oral arguments, a three-judge panel upheld a federal judge’s order that the acting head of the Justice Department’s civil rights division, John Gore, must sit for deposition.

“We cannot say that the district court clearly abused its discretion in concluding that plaintiffs made a sufficient showing of ‘bad faith or improper behavior’ to warrant limited extra-record discovery. Nor did the district court clearly abuse its discretion in ordering the deposition of Acting Assistant Attorney General Gore given his apparent authorship of the December 2017 Department of Justice letter,” the panel held.

Attorneys for the plaintiffs, comprised of numerous state, cities and nonprofit organizations, claim Gore ghost-wrote the Justice Department’s December 2017 letter to the Census Bureau that initiated the request for a citizenship question on the upcoming census.

Though the hearing before the federal appeals court ostensibly focused on the order to take the deposition of Assistant Attorney General John Gore, U.S. Circuit Judge Richard Wesley wasted little time in bringing up last week’s order for Commerce Secretary Wilbur Ross to testify.

“Above my pay grade,” Justice Department of attorney Eric McArthur replied when Wesley pressed for a timeline for Ross’ expected appeal.

Judge Wesley responded, “The clock is ticking.”

Along with Judges Pierre Leval and Rosemary Pooler, Wesley repeatedly pressed the Department of Justice this morning to respond to assertions that adding the citizenship question to the census would depress voter turnout.

McArthur denied the claims that the Department of Justice made any misrepresentations or concealment in the question’s addition.

Though the plaintiffs claim that the Commerce question is being adopted to hurt communities of color, which tend to vote Democratic, McArthur insisted that formal request letter that the department sent to the Commerce Department followed legitimate and above-board intraagency deliberations.

The New York Immigration Coalition is one group fighting the census change, and attorney David Weiner from Arnold Porter reiterated Tuesday the need for discovery to bring light to hidden backchannel communications connecting Secretary Ross to Kansas Secretary of State Kris Kobach through intermediary Steve Bannon, the president’s former chief strategist and a self-described economic populist.

According to documents released in June, Kobach personally urged Ross in July 2017 to add a citizenship question to the Census, specifically citing the intent to exclude certain noncitizens from U.S. congressional apportionment.

The Justice Department claims to have documentation supporting the decision to add the citizenship question, but Judge Wesley appeared skeptical Tuesday. “well, you’re going to get them to me,” he said.

Just this past Friday, U.S. District Judge Furman ordered Commerce Secretary Wilbur Ross to testify about his move. Furman found previously that the challengers made a strong showing of bad faith on the part of the government

Furman ordered Gore’s deposition on Aug. 17 order.

In a 7-page declaration Monday, the Southern District of New York challenged the discovery of redacted DOJ deliberations, concluding that “disclosure of this material would discourage the open and candid discussion that helps DOJ explain its position in an accurate and efficient way.”

Steven Wu, attorney for New York Office of the Attorney General, referenced the likely fight challenging the order to depose Ross as “a battle we’ll have in a week.”

Wu argued the necessity of discovery of emails and phone discussions with “outside stakeholders” to extract facts that had been excluded from administrative records.

Hinting at a likely ruling in favor of discovery, Judge Wesley affirmed to the Department of Justice “well, you’re going to get them to me,” in reference to the preliminary documents anticipating to the decision to add the citizenship question.

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