Barr Says Legal Path to Census Citizenship Question Exists but Gives No Details

EDGEFIELD, S.C. — President Trump and Attorney General William P. Barr began working to find a way to place a citizenship question on the 2020 census just after the Supreme Court blocked its inclusion last month, Mr. Barr said on Monday, adding that he believes that the administration can find a legal path to incorporating the question.

“The president is right on the legal grounds. I felt the Supreme Court decision was wrong, but it also made clear that the question was a perfectly legal question to ask, but the record had to be clarified,” Mr. Barr said in an interview. He was referring to the ruling that left open the possibility that the citizenship question could be added to the census if the administration came up with a better rationale for it.

“It makes a lot of sense for the president to see if it’s possible that we could clarify the record in time to add the question,” Mr. Barr added.

But he also acknowledged that the career Justice Department lawyers who had worked on the census question had little appetite to continue on the case after Mr. Trump inserted himself into the process. “We’re going to reach a new decision and I can understand if they’re interested in not participating in this phase,” Mr. Barr said. The Justice Department announced a day earlier that it was replacing them, a nearly unheard-of move.

Taken together, the talks between Mr. Barr and Mr. Trump and the decision to replace the legal team underscore administration officials’ difficulty in adding a citizenship question to the census. Democrats have criticized the pursuit as an effort to reshape the results of the census — which affects the allocation of hundreds of billions of federal dollars each year — to benefit Republicans.

Mr. Barr said that the Trump administration would soon reveal how it plans to add the question, but he would not detail potential legal pathways. The main challenge, he said, would be adding the question without disrupting the census.

At a news conference later on Monday after touring a federal prison in Edgefield, S.C., with Senators Lindsey Graham and Tim Scott, the Republicans who represent the state, Mr. Barr declined to say whether the president would issue an executive order to add the question. It was not clear what such an order would accomplish; the Constitution makes Congress responsible for overseeing the census, not the president, though the administration carries it out.

The Trump administration’s handling of the census has already put Mr. Barr in the cross hairs of House Democrats, who strongly oppose the addition of a citizenship question. And the hostilities may soon spike.

In a warning shot on Monday, Speaker Nancy Pelosi informed colleagues that she intended to schedule a full House vote “soon” to hold Mr. Barr and Commerce Secretary Wilbur Ross in contempt of Congress for defying subpoenas for documents related to the census question. Ms. Pelosi called the census dispute “essential to who we are as a nation” and asserted that the materials in question would “shed light on the real reason the administration added a citizenship question.”

The House Oversight and Reform Committee, which is investigating the Trump administration’s decision to add the question, voted last month to recommend that the two cabinet officials be held in contempt, mostly along party lines, despite protests from the administration that it was working in good faith to meet the requests.

If the House follows through with a contempt vote on the floor — and no date for a vote has yet been set — it would be empowering the Oversight Committee to take Mr. Barr and Mr. Ross to court to ask a judge to enforce their subpoenas. Doing so is an exceedingly rare step and puts a black mark on both officials’ public records.

The House has already threatened to hold Mr. Barr in contempt once over a separate case related to a subpoena for material connected to Robert S. Mueller III’s investigation as special counsel. But in the end, lawmakers struck a deal with the attorney general and voted on a resolution that merely authorized them to go to court to enforce the subpoena rather than formally accusing Mr. Barr of being in criminal contempt.

House Democrats intend to go further this time, formally accusing both officials of criminal defiance of their summons if the administration does not relent beforehand, according to a senior Democratic aide familiar with the plans. Still, the practical outcome could be the same since the Justice Department would almost certainly refuse to bring a criminal case against the men.

The conversations between Mr. Barr and Mr. Trump came amid a series of abrupt reversals on the issue. After the Supreme Court delayed the administration’s effort to add the citizenship question, ruling that its rationale was “contrived,” Mr. Ross and Justice Department lawyers declared the issue all but dead last week in the near term.

Mr. Ross said that the Census Bureau, which the Commerce Department oversees, would focus on conducting “a complete and accurate census” and had begun to print forms that did not include the citizenship question. Justice Department lawyers, who had argued that they faced a strict June 30 cutoff for printing the census forms, also concluded as that deadline passed that the question would have to wait for the next census in another decade.

But Mr. Trump, who had been strategizing with Mr. Barr to come up with a way to add the question, overruled Mr. Ross and the lawyers a day later, denouncing their statements as “fake news.”

“We are absolutely moving forward, as we must, because of the importance of the answer to this question,” Mr. Trump said on Twitter.

His discussions with Mr. Barr did not appear to make their way to the Commerce Department officials or the Justice Department lawyers working on the case. Mr. Barr did not say why, and a Justice Department spokeswoman would not say whether he had told aides about the discussions or instructed the lawyers on the case to keep pursuing the issue.

The lawyers expressed surprise last week at the president’s assertion, telling a federal judge who had summoned them to a conference call that they would most likely recant their earlier admission of defeat.

“The tweet this morning was the first I had heard of the president’s position on this issue, just like the plaintiffs and your honor,” Joshua Gardner, a lawyer working on the census issue, told Judge George J. Hazel of the United States District Court in Maryland.

But Mr. Barr said on Monday that the president’s statement did not surprise him because “he and I had talked” about the census issue “several times” after the Supreme Court tossed out the citizenship question.

Mr. Barr confirmed that lawyers in the Justice Department’s federal programs branch, who typically defend the administration’s positions in court, would no longer work on the census question. He said that James Burnham, the No. 2 official in the department’s civil division who had led the census team, recommended that lawyers in its consumer protection branch work on the question instead.

“They did a super job,” Mr. Barr said of the departing team. “They were very professional.”

Mr. Barr said that he did not know whether any of the original team members wanted to stay on. “I didn’t really get into the details,” he said.