“White House interfered directly and aggressively with the Committee”
MEMORANDUM June 7, 2019
To: Members of the Committee on Oversight and Reform
Fr: Majority Staff
Re: White House Interference with Oversight Committee Interview of Kris Kobach
This past Monday, on June 3, 2019, Democratic and Republican Committee staff conducted a private, previously-undisclosed interview with Kris Kobach, the former Secretary of State of Kansas, regarding the Trump Administration’s efforts to add a citizenship question to the 2020 Census.
The White House interfered directly and aggressively with the Committee’s interview by instructing Mr. Kobach not to answer any questions about his communications with the President and White House advisors about the real reasons they added the citizenship question. The White House sent several letters, including on the day of the interview, vastly expanding its previous assertions of Executive Privilege to apply to Mr. Kobach—a private citizen who did not work for the Trump Administration when these communications took place.
The Trump Administration’s expansion of Executive Privilege to apply to anyone the President talks to—including those completely outside the government—is a vast departure from previous precedent and obstructs the Committee’s constitutional responsibility to conduct oversight of the Census.
Although Mr. Kobach followed the White House’s orders for much of his interview, he did provide some new information. For example, he confirmed on the record certain elements of his conversations with the President and top White House aides. He also disclosed communications with the Trump campaign far earlier than previously known. However, he refused to answer questions about whether he had additional meetings with the President and his top aides other than those that have been previously disclosed. Finally, his description of his call with Secretary Ross appeared inconsistent with Secretary Ross’ testimony before the Committee in March.
- THE OVERSIGHT COMMITTEE’S INTERVIEW WITH KRIS KOBACH
On April 29, 2019, the Committee sent a letter asking Mr. Kobach to participate in a voluntary transcribed interview regarding his communications with Trump Administration officials about adding the citizenship question.1 Mr. Kobach agreed to participate. 2
The Committee sought to interview Mr. Kobach in part to help determine the actual reasons behind the Trump Administration’s decision to add the citizenship question. Commerce Secretary Wilbur Ross testified that he added the citizenship question “solely” at the request of the Department of Justice (DOJ) to help enforce the Voting Rights Act. 3
However, documents obtained by the Committee reveal that this was not the case. Instead, the record shows that Secretary Ross began a secret campaign to orchestrate the addition of the citizenship question just days after assuming his post and several months before any request from DOJ. Secretary Ross conducted this campaign despite warnings from his own experts at the Census Bureau that a citizenship question would harm the accuracy of the Census.
The Committee has obtained documents showing that Secretary Ross discussed adding a citizenship question with Mr. Kobach several months before DOJ made its request.4 In fact, Mr. Kobach has admitted publicly that he proposed this idea to President Trump “shortly after he was inaugurated” and that the President “absolutely was interested.”5 Documents and testimony also show that the discussions between Mr. Kobach and Secretary Ross were orchestrated by Steve Bannon, who served at the time as President Trump’s Chief Strategist and Senior Counselor.6
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1 Letter from Chairman Elijah E. Cummings, Committee on Oversight and Reform, to Kris Kobach (Apr. 29, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2019-04-29.EEC%20to%20Kobach%20re%20TI.pdf ).
2 Email from Kaylan Phillips, Attorney for Kris Kobach, to Staff, Committee on Oversight and Reform (May 21, 2019) (“Mr. Kobach is willing to participate in a transcribed interview at a mutually convenient time.”).
3 House Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies, Hearing on FY19 Budget Hearing: Department of Commerce, 115th Cong. (Mar. 20, 2018) (online at https://republicans-appropriations.house.gov/calendar/eventsingle.aspx?EventID=395131) ; see also Committee on Oversight and Reform, Hearing with Commerce Secretary Wilbur L. Ross, Jr.(Mar. 14, 2019) (online at https://oversight.house.gov/legislation/hearings/commerce-secretary-wilbur-l-ross-jr).
4 See, e.g., Email from Kris Kobach to Wendy Teramoto, Chief of Staff, Department of Commerce (July 21, 2017) (online at https://apps.npr.org/documents/document.html?id=4500011-1-18-Cv-02921-AdministrativeRecord#document/p776/a428457).
5 That Citizenship Question on the 2020 Census? Kobach Says He Pitched It to Trump, Kansas City Star (Mar. 27, 2018) (online at www.kansascity.com/news/politics-government/article207007581.html).
6 Email from Alexander Brooke, Department of Commerce, to Hilary Geary, Department of Commerce (Apr. 5, 2017) (stating that “Steve Bannon has asked that the Secretary talk to someone about the Census”) (online at https://assets.documentcloud.org/documents/4616790/April-5-2017-Email-From-Brooke-Alexander.pdf) ; Committee on Oversight and Reform, Hearing with Commerce Secretary Wilbur L. Ross, Jr.(Mar. 14, 2019) (Secretary Ross testified that Mr. Bannon “requested” that Secretary Ross “consider taking a phone call from an individual called Kris Kobach” and that Mr. Bannon “said that Kobach had a question that he thought should be asked on the census”) (online at https://oversight.house.gov/legislation/hearings/commerce-secretary-wilbur-l-rossjr).
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For example, Mr. Kobach wrote to Secretary Ross on July 14, 2017, asserting that 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.”7
This rationale had nothing to do with enforcing the Voting Rights Act—the rationale offered publicly by Secretary Ross. However, Mr. Kobach’s focus on excluding certain immigrants when apportioning legislative districts was similar to the rationale set forth in a newly-discovered study by a Republican gerrymandering expert, Thomas Hofeller, the year before the Presidential election. One of the principle conclusions of this study is that excluding certain immigrants in legislative districts—rather than counting all persons—“would be advantageous to Republicans and non-Hispanic whites.”8
Although Mr. Hofeller acknowledged that such an approach would be a “leap,” he noted that the process could not work unless Republicans started collecting citizenship data through the 2020 Census. He wrote: “Without a question on citizenship being included on the 2020 Decennial Census questionnaire, the use of citizen voting age population is functionally unworkable.”9
Although Mr. Kobach reported that he had never met Mr. Hofeller, Mr. Hofeller reportedly had direct communications with the Trump Transition Team about adding the citizenship question, and they discussed using the rationale of assisting with the enforcement of the Voting Rights Act instead of the actual purpose identified in Mr. Hofeller’s study—to help “Republicans and non-Hispanic whites.” For example, Mr. Hofeller communicated directly with Mark Neuman, the Trump Transition Team official responsible for census issues. Mr. Neuman reportedly had a relationship with Mr. Hofeller going back decades, and he also communicated directly with Secretary Ross about this approach.10
- WHITE HOUSE INTERFERENCE WITH KOBACH INTERVIEW
On May 21, 2019, after Mr. Kobach agreed to participate in a voluntary interview, the White House sent a letter informing the Committee that it was instructing Mr. Kobach “not to discuss the substance of any conversations he had with the President or senior White House advisers about official government matters, including ‘the addition of a citizenship question to the 2020 Census.’”11
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7 Email from Kris Kobach to Secretary Wilbur L. Ross, Jr., Department of Commerce (July 14, 2017) (online at https://apps.npr.org/documents/document.html?id=4500011-1-18-Cv-02921-AdministrativeRecord#document/p776/a428457).
8 Thomas Hofeller, The Use of Citizen Voting Age Population in Redistricting (2015) (online at https://assets.documentcloud.org/documents/6111284/May-31-2019-Unredacted-Exhibits.pdf).
9 Id.
10 Deceased G.O.P. Strategist’s Hard Drives Reveal New Details on the Census Citizenship Question, New York Times (May 30, 2019) (online at www.nytimes.com/2019/05/30/us/census-citizenship-question-hofeller.html).
11 Letter from Michael M. Purpura, Deputy Counsel to the President, The White House, to Chairman Elijah E. Cummings, Committee on Oversight and Reform (May 21, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/MMPLetter05.21.2019.pdf).
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The White House cited no valid legal authority or constitutional privilege for instructing Mr. Kobach not to answer the Committee’s questions, but instead offered only a vague claim that these conversations were “confidential.”12 This is not a sufficient legal basis to dictate to a private individual that he may not answer questions from Congress.
On May 30, 2019, the Committee sent a response letter to the White House strongly objecting to the White House’s interference in the Committee’s investigation and, in particular, Mr. Kobach’s interview. The Committee’s letter stated:
This dangerous new tactic by the White House significantly escalates its already alarming efforts to prevent witnesses—now including private citizens who are not employed by the White House or within the Trump Administration—from answering questions posed by Congress. This is the latest step in the Administration’s unprecedented cover-up spanning multiple Executive Branch agencies and offices.13
The letter also stated:
Such a sweeping and baseless extension of the Executive Privilege doctrine not only frustrates the Committee’s investigation but, taken to its logical end, would allow the White House to conceal its communications with lobbyists, special interest groups, and campaign donors. Such extreme secrecy is inconsistent with the carefully limited bounds of Executive Privilege recognized by the federal courts.14
The letter concluded:
For all of these reasons, the White House’s instruction to Mr. Kobach is neither valid nor legally binding in any way, and we expect Mr. Kobach to answer all of the Committee’s questions fully and truthfully during his upcoming interview. The Committee urges the White House to stop interfering inappropriately in this investigation.15
On June 3, 2019, the morning of the interview, the White House sent another letter to the Committee arguing that “our direction to Mr. Kobach stands.” The letter claimed that “Mr. Kobach’s communications with the President or senior White House advisers fall squarely within the scope of executive privilege.” The letter cited two court opinions in support of its claim, but neither case addressed the President’s communications with individuals outside the government. The letter cited no authority for the White House to enforce its instruction directly or to take legal action against Mr. Kobach for answering the Committee’s questions.16
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12 Id.
13 Letter from Chairman Elijah E. Cummings, Committee on Oversight and Reform, to Pat Cipollone, Counsel to the President, The White House (May 30, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2019-05-30.EEC%20to%20Cipollone-WH%20re%20Kobach.pdf ).
14 Id. (citing In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (holding that “the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President’s decisionmaking process is adequately protected”)).
15 Id.
16 Letter from Pat Cipollone, Counsel to the President, The White House, to Chairman Elijah E. Cummings, Committee on Oversight and Reform (June 3, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/PACLetter06.03.2019.pdf).
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Unfortunately, the White House’s demands had their intended effect. During the interview, Mr. Kobach declined more than 15 times to answer questions about his communications with the President and other White House officials, citing the directives from the White House.
These instructions represent an aggressive new tactic by the White House to stop private citizens from answering questions posed by Congress. Taken to their logical end, these tactics could allow the White House to hide communications with lobbyists, special interest groups, and campaign donors.
- NEW INFORMATION PROVIDED BY KOBACH
Although Mr. Kobach followed the instruction of the White House for much of his interview with Committee staff, he did describe some elements of his conversations with the President and his top aides, and his description of his call with Secretary Ross appeared inconsistent with Secretary Ross’ testimony before the Committee in March.
- Kobach Confirms Direct and Early Involvement of President and Top Aides
During his transcribed interview with Committee staff, Mr. Kobach confirmed on the record that he met personally with key White House officials just days after the President’s inauguration to discuss adding the citizenship question—including Chief of Staff Reince Priebus, Senior Adviser Steve Bannon, and even President Trump himself.
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