This week, Judge Furman ordered U.S. Secretary of Commerce Wilbur Ross Jr. to sit for a deposition in a case challenging the constitutionality of adding a question about citizenship status to the 2020 U.S. census questionnaire. The question had not appeared on the census questionnaire since 1950; according to the complaint, the question was purposefully added to decrease the response rate among immigrant communities, leading to fewer public services and less Congressional representation in those areas.
Judge Furman had previously found that the plaintiffs had “made a strong preliminary or prima facie showing that they will find material beyond the Administrative Record indicative of bad faith” and allowed discovery into the decision to add the citizenship question back to the census. Judge Furman found that the deposition of Secretary Ross himself was required because of Secretary Ross’s high degree of personal involvement in the decision and the extent to which his credibility and intent was thus at issue
In short, it is indisputable — and in other (perhaps less guarded) moments, Defendants themselves have not disputed — that the intent and credibility of Secretary Ross himself are not merely relevant, but central, to Plaintiffs claims in this case. It nearly goes without saying that Plaintiffs cannot meaningfully probe or test, and the Court cannot meaningfully evaluate, Secretary Ross’s intent and credibility without granting Plaintiffs an opportunity to confront and cross-examine him. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (“In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”). Indeed, the Supreme Court and the Second Circuit have observed in other contexts that “where motive and intent play leading roles” and “the proof is largely in [Defendants’] hands,” as are the case here, it is critical that the relevant witnesses be “present and subject to cross-examination” so “that their credibility and the weight to be given their testimony can be appraised.” Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962); see DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 30 (2d Cir. 2002) (“Live testimony is especially important . . . where the factfinder’s evaluation of witnesses’ credibility is central to the resolution of the issues.”); cf. Goldberg, 397 U.S. at 269 (“[W]here credibility and veracity are at issue, . . . written submissions are a wholly unsatisfactory basis for decision.”).
Citing the job demands of a sitting Cabinet secretary, Judge Furman limited the deposition to four hours in length.