EFTA00076657

SDNY News Clips, Tuesday, July 9, 2019 
investigation, the government in a criminal prosecution could not use statements an employee had given during 
interviews with the bank's counsel—under the threat of termination—because the statements were effectively 
compelled in violation of the employee's Fifth Amendment rights. Id. at *14. 
As the Rhodes case illustrates, the issue of misusing non-criminal investigations also arises in the context of a 
parallel investigation conducted by civil enforcement authorities. Proving any such misuse may be very 
difficult, but the recent order in Rhodes, requiring prosecutors to provide details about their dealings with civil 
investigators, lays out a procedural path by which the government may be called upon to describe the 
coordination between prosecutors and civil enforcement authorities. This case highlights the importance of 
being alert to possible misuse of civil investigations by prosecutors and pursuing discovery and judicial relief 
when appropriate. 
Elkan Abramowitz and Jonathan Sack are members of Morvillo Abramowitz Grand Iason & Anello P.C. Mr. 
Abramowitz is a former chief of the criminal division in the U.S. Attorney's Office for the Southern District of 
New York. Mr. Sack is a former chief of the criminal division in the U.S. Attorney's Office for the Eastern 
District of New York. Justin Roller, an associate of the firm, contributed to this article. 
41 
EFTA00076697

SDNY News Clips, Tuesday, July 9, 2019 
Barr Says Legal Path to Census Citizenship Question Exists, but He Gives No Details 
NYT 
By Katie Benner 
7/8/19 
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. 
In a court filing on Monday in New York, though, plaintiffs in the case asked a judge to block the lawyers' 
withdrawal because they did not demonstrate "satisfactory reasons" for the change. 
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 
42 
EFTA00076698

SDNY News Clips, Tuesday, July 9, 2019 
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. 
Kerni Kupec, a Justice Department spokeswoman. declined to comment on the contempt issue. 
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. 
A Justice Department official said that even though Mr. Trump told Mr. Barr immediately after the ruling that 
he still wanted the question added, Mr. Barr, and subsequently the department, thought the issue was settled for 
the time being, in part because the census forms were already being printed. 
43 
EFTA00076699

SDNY News Clips, Tuesday, July 9, 2019 
Because of their conversations, however, Mr. Barr was not surprised by the message on Twitter and he knew he 
had to get the department to switch gears. 
But 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. 
The Justice Department was still seeking lawyers to work on the census case on Monday, reaching out to 
lawyers in the office of immigration litigation to work on the matter, according to an email reviewed by The 
New York Times. 
"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. 
44 
EFTA00076700