"I have never intentionally misled Congress or intentionally said anything incorrect under oath," Commerce Secretary Wilbur Ross insisted yesterday while testifying before a congressional committee about his decision to include a citizenship question in the 2020 census. Mind you, Ross definitely misled Congress, and he definitely said things that were incorrect under oath, while responding to inquiries about the citizenship question. But Ross wants us to believe he was merely confused, forgetful, or imprecise, because if he did those things "knowingly and willfully," he would be guilty of a felony punishable by up to five years in prison. His defense might suffice in criminal court, where the standard is proof beyond a reasonable doubt, but outside of that context it is hard to escape the conclusion that Wilbur Ross is a big fat liar.
It is clear that Ross decided to add a citizenship question very early in his tenure, as U.S. District Judge Jesse Furman showed in a 277-page ruling last January. On May 2, 2017, two months after he took office, Ross emailed his deputy chief of staff, Earl Comstock, to express his dismay at the lack of progress in implementing that decision. Ross said he was "mystified why nothing ha[s] been done in response to my months old request that we include the citizenship question." The motivation for Ross' "request" remains unclear, although it might have had something to do with the political disadvantage that Democrats would suffer if the question led to undercounting of households that include illegal immigrants, as it was expected to do. Comstock testified that he never asked Ross what his "rationale might be, because it may or may not be one that is…legally valid."
Searching for a legally valid rationale, Ross' staff approached the Justice Department, which suggested they try the Department of Homeland Security, which sent them back to the Justice Department. After months of bureaucratic wrangling that culminated in an appeal to then-Attorney General Jeff Sessions, Ross finally obtained a letter from the Justice Department, dated December 12, 2017, that claimed the citizenship question was needed to help enforce the Voting Rights Act. Ross then falsely portrayed that letter as the impetus for a decision he had already made.
"The Department of Justice…requested that the Census Bureau reinstate a citizenship question on the decennial census," Ross said in his March 26, 2018, memo announcing the decision. "Following receipt of the DOJ request, I set out to take a hard look at the request and ensure that I considered all facts and data relevant to the question so that I could make an informed decision on how to respond."
Testifying before the House Appropriations Committee on March 20, 2018, Ross said he was "responding solely to Department of Justice's request." Asked if he had discussed the matter with "anyone in the White House," Ross replied, "I am not aware of any such." Ross had in fact discussed the citizenship question with presidential adviser Steve Bannon, who put him in touch with Kansas Secretary of State Kris Kobach. Kobach thinks unauthorized residents should not be counted for purposes of apportioning legislative seats, notwithstanding what the Constitution says on the subject. In a July 2017 email, Kobach told Ross the lack of a citizenship question "leads to the problem that aliens who do not actually 'reside' in the United States are still counted for congressional apportionment purposes."
On March 22, 2018, Ross told the House Ways and Means Committee the Justice Department "initiated the request for inclusion of the citizenship question." On May 10, 2018, Ross likewise told a Senate subcommittee "the Justice Department is the one who made the request of us," when in fact it was the other way around: The Commerce Department had pressed the Justice Department for a request it otherwise would not have made.
About a month later, the Commerce Department published a "supplemental memorandum" in which Ross revised his story. He admitted that he was talking about adding the citizenship question "soon after" he was appointed secretary of commerce and that "other senior Administration officials had previously raised" the issue. "My staff and I thought reinstating a citizenship question could be warranted, and we had various discussions with other governmental officials about reinstating a citizenship question to the Census," he wrote. "As part of that deliberative process, my staff and I…inquired whether the Department of Justice…would support, and if so would request, inclusion of a citizenship question as consistent with and useful for enforcement of the Voting Rights Act."
Ross told basically the same story in his prepared testimony yesterday before the House Committee on Oversight and Reform. "In 2017, my staff and I also began considering the content of the decennial census questionnaire—considerations that included whether to reinstate a citizenship question," he said. "We also asked the Department of Justice (DOJ) whether it would have interest in obtaining more granular citizenship data….I instructed staff to follow up with DOJ for a written statement confirming its views, one way or the other, in time to adequately consider any formal request DOJ might make."
Not surprisingly, the Democrats on the committee were not buying it. Noting Ross' claim in a letter to the committee that his efforts to add a citizenship question prior to the DOJ letter amounted to nothing more than "informal and hypothetical discussions," Rep. William Clay (D-Mo.) said "that explanation does not pass the laugh test." Clay added that "you testified three times, and each time you withheld critical information that Congress needed to oversee preparations for the 2020 census."
Rep. Jimmy Gomez (D-Calif.) noted that "you have portrayed your decision to add the citizenship question as a response to DOJ's request in December of 2017, but the evidence shows that you and your staff had been trying for months to find an agency, any agency, willing to make this request." In light of those efforts, Gomez said, "this whole charade doesn't make sense; it doesn't pass the smell test."
The committee's chairman, Rep. Elijah Cummings (D-Md.), gave Ross an opportunity to rebut Gomez's characterization. This was Ross' reply: "I don't think there's any need to respond."
Ross has broad discretion to change the questions on the census, but it is not unfettered. Judge Furman concluded that the pretextual, haphazard, fuzzily reasoned process that Ross followed violated the Administrative Procedure Act in half a dozen ways. Even if you disagree with Furman's legal conclusions, the chronology he lays out demonstrates that Ross has repeatedly misled Congress and the public about a decision that affects the accuracy of the census and the apportionment based on it. His only defense is that he did it by accident.