Judge Rules Wilbur Ross Can Be Deposed Over Census Citizenship Question

By Ted Hesson and Josh Gerstein, Politico

22 September 18

federal court ruled that a Cabinet secretary must provide, for the first time in 19 years, sworn testimony in a civil case.

The Cabinet member, Commerce Secretary Wilbur Ross, must answer questions about the inclusion of a citizenship question on the 2020 Census, Manhattan-based U.S. District Judge Jesse Furman said.

Furman wrote in a 12-page opinion that the need to hear from Ross qualified as an “exceptional circumstance” that would warrant a deposition from a high-ranking federal official.

“Applying well-established principles to the unusual facts of these cases, the court concludes that the question is not a close one,” Furman wrote. “Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue in these cases.”

The state of New York is leading a coalition of states, cities, counties and mayors in a lawsuit against the inclusion of a citizenship question in the upcoming census. Opponents of the question argue it will depress responses in immigrant-heavy areas and distort the Census results.

The last time a sitting Cabinet secretary appears to have been forced to provide testimony in a civil suit was in 1999, when Interior Secretary Bruce Babbitt took the stand in a trial over the management of a trust fund for Native Americans.

The Justice Department has already persuaded a federal appeals court to temporarily block another order from Furman that permits the deposition of a top DOJ official in the case. A DOJ spokesman declined to comment on whether government lawyers will take similar action in a bid to head off Ross' deposition.

Furman, an appointee of President Barack Obama, in July allowed the lawsuit to move forward and wrote that he would not "insulate" Ross' decision from judicial review.

Emails and documents filed in the proceedings have raised questions about Ross’ level of involvement in the process.

Ross testified before House Ways and Means Committee in March that DOJ initiated the request to include a citizenship question, but a May 2017 email challenges that assertion.

"I am mystified why nothing [has] been done in response to my months old request that we include the citizenship question," he wrote. "Why not?"

A September 2017 memo to Ross from Earl Comstock, director of the Commerce Department's office of policy and strategic planning, suggested DOJ at the time declined to get involved with the citizenship question because of bad press related to "the whole Comey matter."

Furman, whose brother, Jason Furman, was an economic adviser to President Barack Obama, wrote in Friday’s opinion that Ross had show "an unusually strong personal interest" in the inclusion of the question.

The judge added Ross was the only person who could provide certain information about early conversations with Attorney General Jeff Sessions and "interested third parties such as Kansas Secretary of State Kris Kobach," an immigration hard liner currently running for governor in his state.