One damn thing after ano.., p.31
One Damn Thing After Another, page 31
I learned very early on that the President is extremely visual. The best way to present an issue to him was to paint a picture of how something will look on TV. I don’t say this critically. In the Reagan White House, Deputy Chief of Staff Mike Deaver had a gift for explaining the visual significance of various proposals. It’s an essential part of political decision-making, and any former politico who claims he never cared what something looked like on TV is being less than candid. President Trump was always concerned with physical appearances—how someone or something came across on television. At times, it’s true, he took it to unnatural extremes. When he saw a glib talking head on Fox News, he would start throwing around that person’s name for a significant executive position in the government, or he would add the person to his list of informal outside advisers. Sometimes this worked. Frequently it didn’t.
The President was always prompt in giving me immediate visual feedback when I appeared on TV. “You look great!” “You look strong!” “You look like an Attorney General!”
We had an amusing conversation once about my weight. I made a self-deprecating remark about my jowliness on TV. “No, Bill,” he said. “You’re fine, you’re fine. Yeah, you’re big. But you carry it well. Whatever you do, don’t lose too much weight.” He pointed at me for emphasis. “Because then your face is going to sag. You’re lucky because your face, I mean your cheeks—they’re filled out. They look smooth and young. But I guarantee you, if you lose a lot of weight, you’ll look old and saggy.”
I guess I followed his beauty advice. I gained twenty pounds during my two years in the job.
When I started as Attorney General, I walked into the middle of a tempestuous fight between the House Committee on Oversight and Reform and both the Commerce Department and the Justice Department. It ended up with the House taking a shot at me and some jousting between me and the President.
In March 2018, almost a year before I arrived on the scene, Commerce Secretary Wilbur Ross announced that he’d decided to reinstate a question as to citizenship on the census questionnaire. On its face, this was not unreasonable. From 1820 to 1950, that question had been asked of all households, and from 1960 until 2000, the question had been put to at least a portion of the population. In his decision to reinstate the citizenship question for all households, Ross explained that he was responding to a request by the DOJ, which wanted the data to use in enforcing the Voting Rights Act of 1965. Commerce received that request from Justice in a December 2017 letter from the acting head of the Civil Rights Division.
Ross’s decision was immediately challenged in federal district court by a number of states and various public interest groups. They believed the administration wanted to reinstate the citizenship question to redraw election maps. Many areas of the country, especially crowded urban areas, have large numbers of undocumented—and therefore nonvoting—residents, and yet these noncitizens are included in census information from which election maps are drawn. Some areas of the country are therefore apportioned more congressional seats than, based on the number of actual voters, should be the case. Democrats were predictably hostile to the effort, since they benefit electorally from the current system. And, just as predictably, the media portrayed the move as an attempt to make the electorate “whiter” and “less diverse”—as usual imputing racist motives in the absence of any rational counterargument.
During that litigation, the government provided documents showing that Ross had been pursuing reinstating the citizenship question since early 2017, well before he got a letter from the Justice Department. The evidence also showed that about three months before the DOJ letter, Ross talked to Attorney General Sessions, raising the idea that the DOJ request the Commerce Department to include the citizenship question. In January 2019 a federal district court in Manhattan found that Ross’s decision violated the Administrative Procedure Act because Commerce’s declared rationale for asking for the citizenship question was pretextual—that is, it was not the real reason behind the decision. The court enjoined Commerce from adding the question to the census. Arguing that the census forms had to be printed no later than the end of June to be ready for the census, the Justice Department bypassed the court of appeals and persuaded the Supreme Court to hear the case directly.
When I arrived at the department, Ross’s decision was being litigated in the Supreme Court, and a ruling was expected before the end of June—the deadline DOJ and Commerce had supplied the court.
At the same time, the House Committee on Oversight and Reform was aggressively trying to obtain thousands of internal Commerce Department and DOJ documents that it believed might relate to the census question issue. Their purpose was to find any document they could sensationalize to influence the court’s deliberations. They never found any such thing, and not, as they claimed, because we “stonewalled.” During my first few months in office, the department had responded to the committee’s subpoenas by producing more than seventeen thousand documents and was preparing to produce thousands more. In addition, the department had made two senior officials available for transcribed interviews.
By early June, things had come to a head. House Democrats were still smarting over the Mueller report’s belly flop and were still trying to make headlines to influence the Supreme Court’s deliberations. Although DOJ had been bending over backward to respond to their requests, the committee threatened to hold Secretary Ross and me in contempt of Congress unless I agreed to two demands. Both were concessions I could not responsibly make.
The first was that I make available for questioning for a third time the official who had drafted the department’s December 2017 request to Commerce. This official had already testified before the committee and had also appeared for a lengthy transcribed interview. This time, however, the committee was demanding that the official appear for a deposition without the presence of department counsel. I could never agree to that. It has long been recognized, by both Republican and Democratic administrations, that, when an executive branch official is testifying about official actions, agency counsel cannot be excluded. That had long been the practice. Under the Obama administration, OLC, while ruling on a different issue, observed that excluding agency counsel would raise “constitutional concerns.” I was willing to let the official be questioned a third time, but I would not permit the exclusion of the department’s counsel.
The second demand was that we produce a memorandum written by a Commerce Department lawyer to the acting head of the Civil Rights Division and all drafts of DOJ’s December 2017 letter to the Commerce Department. But these documents were protected from disclosure by the deliberative process privilege, the attorney-client privilege, and the attorney work product privilege. Indeed, the district court had already ruled that these documents were privileged. Unless the committee could show that it had a compelling need for the documents that outweighed the privilege, I wasn’t budging.
The department notified the House committee on June 6—appropriately enough, D-Day—that we could not agree to its specific demands, although we were willing to try to work out some other accommodation. In any event, even if I had been willing to make those concessions—which I was not—the President directed me and Secretary Ross not to accede to the committee’s demands. Later, on July 17 the House held Secretary Ross and me in contempt. Because this arose from an interbranch dispute in which the decisions were made by the executive departments and the President, the action had no practical effect. It was a partisan stunt and, I think, seen as such by honest observers.
On June 27 the Supreme Court ruled against the administration. The court found that, while there might well be many good reasons to include the citizenship question, and while an agency can normally have both stated and unstated reasons for its decision, in this case the sole reason cited by Secretary Ross for his decision—the request from the Department of Justice relating to voting rights enforcement—was pretextual. In that situation, the court held that the record was not sufficient to support the decision and blocked it, sending the matter back to the Commerce Department.
On the day of the Supreme Court decision, the President tweeted out: “I have asked the lawyers if they can delay the Census.” On July 3 he tweeted: “The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect. . . . We are absolutely moving forward, as we must, because of the importance of the answer to this question.”
The President was demanding that the Commerce Department make a new decision that would pass judicial muster. In theory, it was possible to formulate a new decision that could cure the defect in the original decision-making process. But there was an insuperable problem—a practical one: There was simply not enough time to frame a new decision, which, to have any chance of being upheld, required at least a modicum of deliberation inside the Commerce Department, and then successfully fend off all the court challenges and injunctions that would inevitably ensue. This all had to be completed by June 30, which the Commerce Department had set as the latest date it could get the census forms to the printer and still have them sent out in time to conduct the census. The DOJ’s Solicitor General, Noel Francisco, had invoked that deadline with the Supreme Court to convince it to short-circuit the appeals process and take up the matter on an expedited basis. Any appreciable delay beyond that date would not only be inconsistent with our previous representations but also threaten serious disruption of the census itself.
Over the next several days, the President pounded on Ross to come up with a way to include the question in the 2020 census by pushing back the printing date. He was implacable. The lawyers in the Solicitor General’s office and the Civil Division were dismayed, and understandably so. Their credibility with the courts would be shot if, after invoking the June 30 deadline, we now tried to embark on a new decision and new set of expedited judicial proceedings that would take us far beyond that date.
Despite the President’s public declaration that he was “absolutely moving forward,” his goals were just not achievable. I knew also that if we even tried to go down that path, a number of key Justice Department lawyers, both political and career, would likely leave their positions.
This would have been a blow. No administration in history faced the avalanche of court challenges and injunctions that opponents heaped upon the Trump administration to stymie its initiatives. Many dedicated lawyers at the department, both political and career, were working tirelessly and, for the most part, successfully, to vindicate the President’s program. They felt the rug was being pulled out from under them.
On July 10 I went over to the Oval Office to tell President Trump that this issue had been taken as far as possible. The meeting promised to be the tensest of any I’d had so far with the President. Pat Cipollone and Mick Mulvaney joined me.
The President, as usual, sitting behind his desk, looked miffed as I walked into the room. He anticipated what was coming. He started performing one of his nervous tics: when he expects controversy, he absentmindedly moves things on his desk to the side, as if to clear a path down the center for the coming fusillade. Repeating the substance of his tweets, he started off blasting the court’s decision as ridiculous.
“I agree we should be able to ask the question,” I started. “And if people were straightforward from the beginning, it could have gotten done. The trouble is the administration was too cute by half, and Roberts threw the penalty flag.”
“Well, I’m hearing from a lot of people that Roberts’s opinion is actually inviting us to make another decision and wants us to,” the President shot back.
This was the bane of my existence. As I was learning, President Trump tended to shop around for legal advice until he found someone who told him what he wanted to hear. He had a big stable of outside hangers-on—“legal advisers” who were always ready to do just that. Some of them actually had law degrees.
“No, Mr. President,” I said. “Your Solicitor General does not believe that. I don’t believe that. And, frankly, no one who understands the Supreme Court believes it. Whoever is telling you this doesn’t know what they are talking about.”
The President’s face reddened with frustration as I continued: “There is just no practical way to get a new decision made and upheld in the courts on time. If we try to go down this path, we will run out of time, jeopardize the census, and succeed only in antagonizing the courts.”
To avoid a total loss, I suggested an alternative. Various agencies already had a lot of data on the citizenship of people in the country. Just as important as asking a new question on the questionnaire, I argued, was for the federal government to pull together and integrate all this data. I suggested to the President that he put out an executive order directing all federal agencies to provide the Census Bureau all the data they held concerning citizenship.
President Trump sat quietly for a moment, his frustration gradually giving way. Realizing he had taken the issue as far possible, he reached a place of equanimity. “Okay,” he said, “that’s what we’ll do. It’s a good resolution given where we are.” The meeting was not that bad after all.
The next day, Ross and I came to the White House to make the announcement with the President. While we were still in the Oval Office, he looked me over and spotted something he didn’t like. He took a piece of Scotch tape out of his drawer, walked over to me, and put it on the small end of my tie to hold it in place behind the longer, wider part. “Now, that’s better,” he said, patting me on the chest.
Then Ross and I accompanied him into the Rose Garden, where he announced he was no longer seeking to reinstate the citizenship question in the 2020 census and that instead he would issue the executive order. In my remarks, I stressed that the Supreme Court’s decision made clear there was no legal impediment to including the question. The reason we couldn’t do it now was purely a matter of logistics—we couldn’t get it done in time.
The whole census imbroglio was unnecessary. The people involved had little experience handling these kinds of legal matters. The administration tried to buttress its case in a way that made it look like the stated rationale was pretextual. But the question could have been easily justified for any number of reasons. Time ran out before we could fix the mess the administration created for itself.
At the regular Monday lunches that I and Brian Rabbitt had with Pat Cipollone and his deputy, Pat Philbin, typically one of the main orders of business was to inventory the legally problematic ideas floating around the administration. A fair share of them emanated from the President, and Cipollone and I had to decide which of us would have responsibility that week for dealing with the problem. We operated like a tag team, so that neither of us would provoke too much of the President’s ire at one time. We referred to this as choosing who would “eat the grenade.”
“The President wants to issue the executive order on birthright citizenship by the end of this week,” Pat might say.
He was talking about President Trump’s idea of ending automatic citizenship for children born in the United States to aliens illegally in the country. This required reinterpreting the Fourteenth Amendment’s standard for citizenship and raised a host of legal and practical problems. Even if the Constitution allowed Congress to do this, trying to do this unilaterally by executive order instead of statute was essentially a suicide mission. We were sure to lose in court, given the Supreme Court’s composition at that time. Furthermore, a statute could be framed to disallow citizenship only going forward, but an executive order would have to be based on the premise that millions of persons already recognized as citizens over the preceding century were, in fact, not citizens. Issuing an executive order calling into question the citizenship of millions of established citizens did not seem a wise move.
“Come on, Pat,” I’d say. “You know OLC feels there are a lot of legal problems there, and those concerns aren’t trivial.”
“Look,” he would say, “I’ve been taking the heat on this for weeks. You need to explain it personally to the President.”
I’d chew on a piece of salmon for a minute.
“Okay, I’ll eat the grenade on birthright. But,” I’d add, “I need your help on this damn census question. I’ve been trying to explain it to him. After we lost in the Supreme Court, we just don’t have the time to make a new decision and litigate it through the courts before the questionnaires have to be distributed.”
“Okay,” Pat would say. “I can help on that one.”
The President sometimes had some brilliant ideas, like using tariffs to get the Mexicans to help us shut down illegal immigration. But he was a hyperactive generator of ideas, many of them bad—the idea of an executive order on birthright citizenship being a prime example. When the problems were legal, it fell to the DOJ and the White House counsel to either fix the legal problems so that the idea could be implemented properly, or, failing that, talk the President out of the idea. Sometimes the back-and-forth with President Trump could be bruising. Hence the desire to spread the joy more equitably.
There were certain issues the President would raise relentlessly no matter how many times the legal problems were explained. Sometimes it seemed the worse the idea, the more fixated on it he became. I referred to these issues as Groundhog Day issues. For non-moviegoing readers, that’s a reference to the 1993 comedy in which Bill Murray plays a weatherman who relives the same day, February 2, over and over. Working for Trump could feel like that sometimes. He would raise the same issue again and again at regular intervals. You would think the matter was settled and decided, but then he would bring it up again as though it wasn’t. We would discuss it again, and it seemed he was satisfied. Then two weeks later, he’d bring it up again. On some issues, February 3 just wouldn’t come.
On the morning of Saturday, August 10, 2019, I was working in my home study when I got a call from Brian Rabbitt. “Boss,” he said, “we have a problem.”
