In the lawsuits over the hotly contested 2020 census citizenship question, attorneys for the plaintiffs are facing a memory problem.
In recent weeks, Trump administration officials who worked with Commerce Secretary Wilbur Ross to add the question, based on internal emails and memos released as part of the legal battle, have been facing hours of inquiry from the plaintiffs' attorneys.
During these depositions, two key Commerce officials testified they could not recall organizing meetings about or discussing the citizenship question — even after attorneys presented them with internal emails that appear to document their participation.
"I don't recall a conversation about it," said Karen Dunn Kelley, who started as undersecretary for economic affairs at the department on Aug. 21, 2017, according to a partial transcript of her deposition filed Tuesday.
Kelley was shown a chain of emails from last August that appear to originally include an attached draft of a memo on a citizenship question requested by Ross.
In one of the emails, Wendy Teramoto, who has served as Ross' chief of staff, wrote to Ross and Earl Comstock, another Commerce official: "Peter Davidson and Karen Dunn Kelly [sic] wi [sic] both be here Monday. Let's spend 15 min [sic] together and sort this out."
However, when asked during her deposition if she had been briefed on the citizenship question issue by Aug. 21, Kelley testified she did not remember when she learned about it.
"It is possible. I'm not denying it. I'm not confirming it. I just don't know," she said. "I wish I could tell you. I just don't know."
'I have no recollection'
Another email chain released as part of the lawsuits shows that "at the direction of Steve Bannon," the former White House adviser, Ross was contacted by a proponent of a citizenship question in the early months of the Trump administration — Kris Kobach, the Republican candidate for Kansas governor who helped lead President Trump's now-disbanded commission on voter fraud.
In July 2017, Kobach wrote to Ross that not asking about U.S. citizenship status on the census "leads to the problem that aliens who do not actually 'reside' in the United States are still counted" in census numbers used to divide congressional seats among the states.
Kobach forwarded that email to Teramoto, who set up a phone call with Kobach, Ross and another Commerce official.
During her deposition more than a year later, though, Teramoto said she had "no idea" who Kobach is.
"I have no recollection ever speaking to him," she said, adding later that she was "not involved in the day-to-day workings of the census."
Last week, the plaintiffs' attorneys asked U.S. District Judge Jesse Furman in New York to allow them to depose Kobach.
Teramoto did specify that she considers Kelley and Comstock the "main people" on census-related issues at the Commerce Department.
The plaintiffs' attorneys, however, were unable to get more insight into Ross' decision during both Kelley's and Comstock's depositions, based on transcript excerpts filed in court.
Comstock testified he never discussed with Ross the identities of the other "senior" administration officials who, according to a memo signed by Ross, raised the issue of adding a citizenship question. He also said he did not ask Ross why the commerce secretary wanted the question after being tasked with looking into getting one on the census.
"I don't need to know what his rationale might be," Comstock said, "because it may or may not be one that is — that is something that's going to a legally-valid basis."
Asked by an attorney if he was acknowledging that he's "better off not knowing" Ross' rationale, Comstock replied that given that Ross is not a voting rights lawyer, "I would not expect him to necessarily come up with a rationale. That's the job of the staff at work."
The Commerce Department has not responded to NPR's inquiries.
The challenge of 'failed memories'
The memory lapses of Trump administration officials pose a challenge for the attorneys representing more than two dozen states and cities, plus other groups, that are trying to get the citizenship question removed from forms for the upcoming national head count. They are looking for evidence to support their argument that Ross — who oversees the census — misused his discretion and discriminated against immigrant communities by adding the question.
Citing the "failed memories of Commerce's senior leadership," the plaintiffs' attorneys from the American Civil Liberties Union, the New York state attorney general's office and the law firm Arnold & Porter are asking Judge Furman to order the administration to release more internal documents that, they say, may reveal the "true motivations" for adding the question.
"The lack of forthrightness of these senior government officials was troubling to say the least," the attorneys wrote in their request.
Devin O'Malley, a spokesperson for the Justice Department, which is representing the Commerce Department and the Census Bureau in these lawsuits, declined to comment about the request.
In a recent court filing, attorneys for the Justice Department said they're planning to ask the 2nd U.S. Circuit Court of Appeals to block the plaintiffs' attorneys from requesting internal documents from the department and deposing John Gore, the acting head of the civil rights division that allegedly needs the citizenship question to better enforce the Voting Rights Act.
'Is this person a citizen of the United States?'
Whether the citizenship question stays on 2020 census forms could reshape how political power and federal funding are distributed across the country over the next decade. The number of congressional seats and Electoral College votes, as well as how much of an estimated $800 billion a year in federal funds, each state receives depends on its population count from the census.
There are six total lawsuits over the question around the country. Federal judges have rejected the Trump administration's efforts to get five of them tossed out of courts, and a potential federal trial for the two cases in California is scheduled to start on Jan. 7.
The controversial question — "Is this person a citizen of the United States?" — was added by Ross in March. The Census Bureau has not asked all U.S. households about citizenship status since 1950, though federal law requires about one in 38 households to answer that question every year in a sample survey now known as the American Community Survey.
Research by the Census Bureau suggests adding the question could discourage noncitizens from participating and harm the accuracy of the head count of every person living in the U.S. as required by the Constitution once a decade. A working paper recently released by researchers at the bureau's Center for Economic Studies notes that citizenship information collected from the census may not be accurate because many noncitizens misreport themselves as citizens on surveys.
Still, Ross has testified before Congress that the Justice Department made the request for a citizenship question to better enforce the Voting Rights Act's provisions against racial discrimination.
But Ross later contradicted his testimony by revealing in a memo that months before the Justice Department submitted its request to the Census Bureau, he and his staff asked the department if it would request the question.
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