During the session, Justice Department lawyer Elizabeth Shapiro said the administration tried to engage with the House when it first demanded the census-related documents earlier this year and after it subpoenaed them in April, but stepped back after President Donald Trump asserted executive privilege and the House voted for contempt.

“At that point, there was no negotiating,” Shapiro said, describing the situation as having “a gun to our head.”

“I disagree entirely,” replied Moss, who said there was no reason to shut down that process for that reason.

When Shapiro said the filing of briefs in the case might take a longer time if the Justice Department has to review all the documents and explain why they were withheld, Moss seemed surprised.

“That should occur before documents are withheld from Congress,” said the judge, an appointee of President Barack Obama. “I’m not sure it’s appropriate almost a year after the subpoenas were served to say we haven’t reviewed the documents yet…I think they need to.”

Moss made clear that he’s intimately familiar with such fights, offering up an “in my day” recounting of his involvement in document-by-document reviews in response to Congressional subpoenas when he headed up Justice’s Office of Legal Counsel during the Clinton administration.

In recent months, Trump administration officials have repeatedly cited with approval a legal opinion Moss issued during that time saying that the president could not be indicted while in office.

Most of Friday’s hearing was devoted to jockeying over the timing of further action on the House’s census-related suit. Justice Department attorneys have asked that the case be put on hold until the D.C. Circuit Court of Appeals rules on a pending appeal of another judge’s ruling forcing former Trump White House counsel Don McGahn to testify in response to a House subpoena following up on special counsel Robert Mueller’s report.

However, House counsel Douglas Letter said that risked dragging out the court fight past the time the census is scheduled to take place on April 1.

“The census will be over by the time all these things happen,” Letter said. “We can’t have that.”

Letter said that while arguments in the McGahn case are set for Jan. 3, there’s no guarantee when the court will rule. He also expressed “immense frustration” that appeals courts in New York and Washington have taken months to rule in such battles.

“Thankfully, they’ve always ruled in our favor, but it’s taken a long time,” Letter said.

Moss said he wouldn’t put the census documents case on hold, saying it wasn’t for him to second-guess the House’s claim it needs the records quickly.

While Moss seemed to lean in the House’s favor on the timing front, he was clearly keeping his options open on the merits of the executive privilege issues at the heart of the dispute. He said there was little or no precedent on how a judge is supposed to balance the executive branch confidentiality interests against Congress’s needs.

“There’s not a lot of judicial guidance on the privilege,” he said, calling the issue “knotty” and “tough.”

