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Justice Department declined to prosecute Wilbur Ross over census citizenship question testimony

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The Department of Justice declined to prosecute former Commerce Secretary Wilbur Ross despite a watchdog finding that the multi-millionaire Republican made misrepresentations to Congress about his agency’s motivations for seeking to add a citizenship question to the decennial census.

Peggy Gustafson, the Commerce Department’s inspector general, disclosed the DOJ’s refusal to bring the case in a letter released on Monday addressed to Senate Majority Leader Chuck Schumer, D-N.Y., and Rep. Carolyn Maloney, D-N.Y., who chairs the House Oversight Committee.

The letter says that Gustafson’s office determined that Ross did not provide Congress with the full reasons that the Commerce Department sought to add the citizenship question to the census. The investigation was “presented to and declined for prosecution by the Public Integrity Section of the DOJ’s Criminal Division,” Gustafson wrote.

The Supreme Court ultimately rejected then-President Donald Trump‘s effort to add a citizenship question to the census in a 2019 decision that found that the reasons for doing so offered by Ross were effectively a pretext.

The citizenship question, which was challenged by activists who said it would discourage minority participation in the constitutionally mandated count, did not appear on the 2020 Census.

Ross claimed that the citizenship question was necessary to enforce the Voting Rights Act. The former steel magnate said that the Commerce Department sought to add the question in response to a request to do so made by the Department of Justice.

Gustafson cast doubt on Ross’s claims in her letter to Schumer and Maloney.

Gustafson wrote in her letter that the inspector general’s office investigated allegations that Trump administration officials failed to disclose the work of a political operative who sought to add the question to the census.

That political operative is not named in the letter but appears to be Thomas Hofeller, a Republican strategist who conducted a study showing that adding a citizenship question could boost GOP gerrymandering efforts. Hofeller died in 2018, and his files were made public after they were discovered by his estranged daughter.

The watchdog also investigated whether officials purposefully hid racial and partisan motives for adding the question, Gustafson said.

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Gustafson wrote that the inspector general was unable to establish that Hofeller played a substantial public policy role.

The investigation did show that correspondence from the Commerce Department to the Justice Department contained “verbiage similar to that used in portions” of Hofeller’s unpublished study. But, she wrote, those portions “related to historical and factual references to the Census and did not include the Political Strategist’s opinions.”

However, the investigation did determine that Ross failed to provide Congress with the Commerce Department’s motivations for seeking the citizenship question on at least two occasions in March of 2018, during testimony before two House committees.

Ross said in his testimony that the Commerce Department’s decision to seek the citizenship question was based “solely on a DOJ request” signed on December 12, 2017, Gustafson wrote.

“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,” Gustafson wrote.

In addition, she wrote that in a June 2018 memorandum, Ross “stated he began considering the content of the 2020 Census, to include reinstating the citizenship question, soon after his appointment to Secretary.”

Gustafson added that there was also evidence suggesting that the Commerce Department played a part in the drafting of the Justice Department memorandum.

The letter says that the inspector general investigation began in June of 2019 but it does not say when the investigation concluded, nor when the Justice Department declined prosecution. The letter is dated July 15.

Ross could not immediately be reached for comment. The Justice Department did not respond to a request for comment.

The letter indicates that some lawmakers were provided with a more detailed report on the inspector general’s findings. That report has not been redacted for public release, the letter said.

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