On the Missing Inspector General Report[s] about Wilbur Ross’ Lies

There was a big news blitz yesterday on the news that the Commerce Department’s Inspector General had concluded Wilbur Ross twice misled Congress about the rationale for including a citizenship question in last year’s census.

The claim was based off a letter from Inspector General Peggy Gustafsonwho was nominated under President Obama — explaining what had become of a 2019 request to investigate whether Ross had lied. In her letter, which was publicly released, Gustafson revealed the outcome of her investigation.

Our investigation established that the then-Secretary misrepresented the full rationale for the reinstatement of the citizenship question during his March 20, 2018, testimony before the House Committee on Appropriations and again in his March 22, 2018, testimony before the House Committee on Ways and Means. During Congressional testimony, the then-Secretary stated his decision to reinstate the citizenship question was based solely on a DOJ request. That request memorandum was signed by the DOJ on December 12, 2017. However, evidence shows there were significant communications related to the citizenship question among the then-Secretary, his staff, and other government officials between March 2017 and September 2017, which was well before the DOJ request memorandum. Evidence also suggests the Department requested and played a part in drafting the DOJ memorandum. Further, the then-Secretary sent a memorandum to the Department on June 21, 2018, clarifying his deliberations regarding adding a citizenship question to the Decennial Census. In this memorandum, the then-Secretary stated he began considering the content of the 2020 Census, to include reinstating the citizenship question, soon after his appointment to Secretary.

This investigation was presented to and declined for prosecution by the Public Integrity Section of the DOJ’s Criminal Division.

She sent the report to Congress along with her letter. But the report itself has not been released publicly or, best as I can tell, even leaked with those who wrote stories on the letter.

Reports on DOJ’s declination created a great deal of outrage that Merrick Garland had declined to prosecute the case. Only, as an AP correction revealed, Garland’s DOJ hadn’t declined prosecution. Barr’s DOJ did.

This story has been corrected to reflect that the decision not to prosecute Ross was made by the Department of Justice during the Trump administration, not the Biden administration.

But corners of the media blitz left out a lot more details about the context of the original request. It came after a Republican strategist, Thomas Hofeller, died, leaving his Democratic daughter to go through his papers, only to discover he, and very racist plans for gerrymandering, were behind the census question. After that smoking gun was discovered, House Oversight (starting under Elijah Cummings before he died) did more investigation and then a bunch of Senators asked for an investigation.

And after DOJ kept appealing a District Court ruling on the question in NY, even the Supreme Court found that Commerce had misrepresented the reason for the question.

Finally, we have recognized a narrow exception to the general rule against inquiring into “the mental processes of administrative decision-makers.” Overton Park, 401 U. S., at 420.

On a “strong showing of bad faith or improper behavior,” such an inquiry may be warranted and may justify extra-record discovery. Ibid. The District Court invoked that exception in ordering extra-record discovery here. Although that order was premature, we think it was ultimately justified in light of the expanded administrative record. Recall that shortly after this litigation began, the Secretary, prodded by DOJ, filed a supplemental memo that added new, pertinent information to the administrative record. The memo disclosed that the Secretary had been considering the citizenship question for some time and that Commerce had inquired whether DOJ would formally request reinstatement of the question. That supplemental memo prompted respondents to move for both completion of the administrative record and extra-record discovery. The District Court granted both requests at the same hearing, agreeing with respondents that the Government had submitted an incomplete administrative record and that the existing evidence supported a prima facie showing that the VRA rationale was pretextual.


That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA. 351 F. Supp. 3d, at 660.

John Roberts laid out the evidence that Commerce’s IG must also have relied on.

[I]t was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data. The December 2017 letter from DOJ drew heavily on contributions from Commerce staff and advisors. Their influence may explain why the letter went beyond a simple entreaty for better citizenship data—what one might expect of a typical request from another agency—to a specific request that Commerce collect the data by means of reinstating a citizenship question on the census. Finally, after sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data, further suggesting a lack of interest on DOJ’s part.

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.

After SCOTUS ruled Commerce could not include a citizenship question in the census, the plaintiffs asked the judge to sanction DOJ and Commerce officials who made misrepresentations to the court. Judge Jesse Furman made the government pay fees but did not further sanction the government witnesses in question.

That is, the underlying record has been known for some time. The only thing new in the record, as far as we know, is that — after a bunch of Senators asked for an investigation into this — the Commerce IG agreed with John Roberts and referred Ross for prosecution, only to have Barr’s hyper-politicized DOJ — a DOJ that was itself caught making untrue statements to the District Judge in the NY case — decline prosecution.

Which makes it all the more curious that Commerce didn’t publicly release the report along with the letter. The report is done. Why not release it publicly, as past derogatory reports about Ross were released?

One more detail that may explain DOJ’s silence in response to this news. The original letter from a bunch of Senators requesting the investigation wasn’t addressed just to Commerce. It was also addressed to Michael Horowitz, DOJ’s Inspector General. There’s no sign of such an investigation on their site (and I have thus far gotten no response to a question about this from them) — but they don’t include all their investigations.

But these stories are only about what the result of the Commerce Inspector General investigation was, and how Bill Barr’s DOJ responded. They’re not about whether there was an investigation at DOJ, and what happened if that investigation ended under Merrick Garland. They’re not about what a DOJ that has put great emphasis on voting rights has done with all this.

39 replies
    • Rugger9 says:

      I think if this was done formally via a letter or some such, it would be binding. After all, Bill Cosby walked on a similar situation where a prosecution promise was broken, and Ollie North also walked after his conviction of lying to Congress (IIRC) was overturned because of an immunity deal.

      Our esteemed bmaz says otherwise, but I have no doubt that Wilburrrrr will be able to get a fancy-pants counsel to make the connections and pull it off. I think the only real question is whether Garland can find something else that was not part of Barr’s deal (i.e. new evidence, etc.) which can then be leveraged. Let’s remember Garland has five years to sort it out before the statute of limitations runs out (IIRC).

      • emptywheel says:

        One underlying point of this post is that there may be a SECOND referral which would be the easy way to revisit the first one.

      • Ken Haylock says:

        Maybe get Wilbur Ross back before congress, get him to answer all the questions he lied in answer to before plus some new ones that arise from what they now know, & then if he lies again, refer him again for perjury, & if he tells the truth or takes the fifth, refer him for whatever crime trying to sabotage the census is…

        • bmaz says:

          After the report, Ross would be a fool to appear and testify. Congress is lame at enforcing subpoenas, and if it even got that far, he would plead the 5th. Should he be able to do that having already testified? That litigation could take years, even if any of the houses of Congress had the stomach for it.

          • timbo says:

            So, basically, he won’t testify unless he has no choice. And then he’ll take the 5th a lot when the questions get into his own legal jeopardy. Are there any other folks involved that he could be forced to incriminate though or be held in contempt if he refused to testify about? Sigh. Probably doesn’t matter at this point, given how badly the current DP has failed at any of this so far.

          • geekydee says:

            Out of curiosity, can one plead the 5th on a question after answering the same question under oath previously? Always wondered that and got tired (ok fine, bored, are you happy now?) by the 5th page of results.

          • OmAli says:

            Speaking of congressional subpoenas, I am totally confused about enforcement. IS there any enforcement mechanism for a congressional subpoena? Or can they just be given the middle finger, tossed into court and lost for a generation?

            • bmaz says:

              Yes, there are two. 1) Serve the subpoena and then, once dishonored, go to court to enforce it. But with appeals and whatnot, that can be a very slow and expensive process. A process Democrats have proved pathetic at. 2) Try to enforce “inherent contempt”, something not done, by my recollection, in over 100 years, and for which there are several problems with executing. People talk about it often, but hard to see it really being used.

  1. P J Evans says:

    It’s a relief, of sorts, to know that it wasn’t Garland who declined to prosecute. But lying while under oath should be taken more seriously by Congress.

  2. The Old Redneck says:

    Maybe that lax attitude about perjury comes from members of Congress thinking about self-preservation. After all, many of them could join the executive branch and eventually have to testify before Congress themselves. Think of recent Secretaries of State and Defense.
    The only time I can remember someone getting punished for lying to Congress was Roger Stone – and it wasn’t by Congress, and it didn’t last long.

  3. Peterr says:

    I’m inclined to think that this points to an ongoing investigation, not so much of Ross but Barr and his minions. The phrase “conspiracy to obstruct justice and commit perjury” comes to mind.

    If a phrase like that comes to the minds of any of those minions, it may be followed by conversations between their lawyers and the DOJ lawyers looking into this. Remember: the first conspirator to come forward gets the best deal, the second gets a smaller prize for corroborating the first, but the last in line holding the bag . . . chose poorly.

    • timbo says:

      Barrack’s arrest on Friday, and the bail hearing today, seems to point to some serious stuff being investigated by a Grand Jury. It’ll be interesting to hear why this is only happening now and not a year or two ago…doesn’t mean we will find out about who, what, and where this was dropped under Twitler’s DOJ…but we might.

  4. obsessed says:

    I come here to find out how naïve I’m being. Currently, my sense is that ever since Ford pardoned Nixon, every GOP administration committed horrific crimes that were covered up and normalized by the subsequent Dem DOJ, leading to unthinkable further escalation of the brazen criminality of the next GOP Administration. My sense is the Garland is bending over backwards to continue this tradition. There’s something new every day that makes my blood pressure spike. And the only I can think of to fight it is to try to organize campaigns to get people to flood https://www.justice.gov/doj/webform/your-message-department-justice.

    1. Am I wrong about Democratic enabling of GOP corruption?
    2. Am I wrong about Garland?
    3. If DOJ received millions of online complaints would they even read them, or notice them, much less do anything?

    • emptywheel says:

      We don’t know one way or another about Garland, yet, because DOJ is appropriately keeping investigations secret. We know that Garland was willing to investigate Rudy Giuliani and Tom Barrack, though, and that every time he comments on Jan 6 he says investigators should follow the evidence where it leads.

  5. joel fisher says:

    Wilbur Ross, a perjurer to be sure, is not the worst of a bad lot. Certainly, he’s no Former Guy; he’s not a Barr. And I don’t know who I’m forgetting, before I’d get to Ross. Aren’t there a lot of Former Guy’s henchmen–especially the pardoned ones–who should be sitting in a witness chair lying up a storm? Isn’t there an obstruction of justice charge from the Mueller Report to be considered now that TFG is a civilian? Sure, go after Ross; but he’s not what I would call the prize.

    • Rayne says:

      Oh my. I don’t think I have enough words for your ability to marginalize Wilbur Ross’s corruption.

      There are bigger allegations. Over several months, in speaking with 21 people who know Ross, Forbes uncovered a pattern: Many of those who worked directly with him claim that Ross wrongly siphoned or outright stole a few million here and a few million there, huge amounts for most but not necessarily for the commerce secretary. At least if you consider them individually. But all told, these allegations—which sparked lawsuits, reimbursements and an SEC fine—come to more than $120 million. If even half of the accusations are legitimate, the current United States secretary of commerce could rank among the biggest grifters in American history. [Forbes: New Details About Wilbur Ross’ Business Point To Pattern Of Grifting, August 2018]

      . . .

      Commerce Secretary Wilbur Ross violated his ethics agreement and submitted a financial disclosure form that “was not accurate,” according to the Office of Government Ethics.

      Emory Rounds, the director of the Office of Government Ethics, wrote that Ross reported in his annual financial disclosure that he sold bank stock that other reports indicate he did not sell.[CNN: Wilbur Ross’ financial disclosure rejected by federal ethics agency, Feb 2019]

      . . .

      For most of last year [2017], Ross served as secretary of commerce while maintaining stakes in companies co-owned by the Chinese government, a shipping firm tied to Vladimir Putin’s inner circle, a Cypriot bank reportedly caught up in the Robert Mueller investigation and a huge player in an industry Ross is now investigating. It’s hard to imagine a more radioactive portfolio for a cabinet member. … [Forbes: Lies, China And Putin: Solving The Mystery Of Wilbur Ross’ Missing Fortune, June 2018]

      I just scratched the surface. The man should NEVER have been nominated let alone approved by the Senate. There should be ongoing investigations into Ross’s dirtbaggery, along with the rest of the Trump crime regime.

      • Marinela says:

        Have Barr testify in Congress. Yes, there are five secretaries he declined to prosecute, all five got away without paying any price for corruption, Barr at least should be held responsible.
        How are we going to prevent future DOJ rot if there is no way to hold the AG responsible for corruption?
        IG investigations and referrals are not going to work if a corrupt AG declines to prosecute.

        • P J Evans says:

          Also at least one judicial nominee, and they didn’t do much of a background check on several.

      • joel fisher says:

        WADR, I don’t think saying the Former Guy’s crimes–and Barr’s–are more serious than Ross’s is “marginalizing”.

      • earlofhuntingdon says:

        And he was only the most extreme (that we know about) of the half dozen or so criminals chosen by the former guy to be a cabinet secretary.

        • OmAli says:

          I’m waiting to see if Pompeo gets dragged into the Barrack investigation. Please, gods. And Jared.

      • EmmEll says:

        Rayne, can we replace ‘dirtbaggery’ with ‘perspinchtery actions’?

        First comment here, not sure if it is out of line but I like new descriptive adjectives.

  6. Norskeflamethrower says:

    Answer to #1: no
    Answer to #2: yes
    Answer to #3: no
    Our system of justice has been so bipartisanly corrupted for so long that nothing that proves it will ever see the light of day in a courtroom. Garland is a good guy though.

    • obsessed says:

      >#2 (yes)

      So you’re saying there’s a separate reasonable explanation for each of the case where Garland has normalized the behavior we complained about all through Trump’s term? And while the next GOP administration will use the new position of the legal goalposts as a starting point (as *every* GOP administration has), there was simply nothing that Garland could have done? Do you think Chuck Rosenberg would have handled any of this differently?

      >#3 (no)

      Is there any effective way that a large movement of smart angry activists could influence DOJ’s behavior?

      On a related topic, is there any reason to hope that the Barrack indictment will lead to anything of value?

  7. timbo says:

    Corruption and perjury doesn’t miraculously stop happening if no one is effectively prosecuted for it. Hopefully the DP demonstrates some sort of backbone here in reining in the level of corruption that is obviously growing in the country as ineffective leadership on this issue continues to undermine our democracy…

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