The Magazine

Holding Holder Accountable

The U.S. Commission on Civil Rights steps up.

Dec 7, 2009, Vol. 15, No. 12 • By JENNIFER RUBIN
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Into this breach has stepped the USCCR. It sent letters in June and August to Justice demanding to know the reasons for the dismissal and whether the department had changed its longstanding interpretation of the Voting Rights Act. The USCCR's concern goes beyond potential ethical violations by Obama appointees meddling with career attorneys' work, Reynolds explains. No one, he notes, would "seriously entertain the view that the Justice Department would have taken the same approach if we moved this out of Philadelphia, to the South with white men .  .  . in hoods, swinging billy clubs and saying 'This is a white man's world.' " The USCCR's interest, he explains, is in the "precedent": "I don't want any organization or group to point to the New Black Panther party controversy and say, 'We did the same exact things, and we want the same treatment.' "

Attorney General Eric Holder has so far ignored requests for relevant documents despite a statutory mandate to cooperate. Notes Commissioner Peter Kirsanow, "We thought we had made a very reasonable information request. We got a cursory response, and we've continued to be stiffed." Hans von Spakovsky--a former counsel to the assistant attorney general for civil rights--thinks Holder must have "something to hide."

There is no reason why the pleadings and other documents in the case cannot be turned over to the Civil Rights Commission. The case is over with--it is not an ongoing matter. If they did nothing wrong and made the correct decision on the law and the facts, they should want to turn over their legal opinions and analysis.

The USCCR has decided to conduct its own year-long inquiry and hold hearings.

The USCCR advised Holder of its plans in a September 30 letter noting that, if he didn't respond to its request for documents, "it will be necessary for us to propound our interrogatories and interview requests directly on the affected Department personnel." Holder again did not respond, and on October 30 the USCCR voted 5-2 to authorize issuance of subpoenas. A source unrelated to the commission with knowledge of the case describes what the subpoena will force the government to disclose:

Justification memos, investigative memos, witness statements and affidavits, remedial memos, proposed remedial orders, emails discussing the facts and applicable law, information obtained from potential expert witnesses the Department consulted prior to dismissal, emails and memos responding to political appointees, emails from third parties to political appointees including from any NAACP officials lobbying for a dismissal, and perhaps most interesting of all--the responses about the case the four career attorneys prepared for the Office of Professional Responsibility regarding their investigation of then Acting Deputy Assistant Attorney General Steve Rosenbaum and then Acting Assistant Attorney General Loretta King which were provided to OPR back in September. The latter are likely the best source of the truth about the case.

Such data and the testimony from witnesses would likely focus a public debate on Obama officials' political interference with career attorneys' work. On November 16, the Justice Department finally responded, tersely informing the USCCR that it would await completion of the OPR investigation before cooperating.

Late last week, the USCCR went ahead and issued subpoenas to depose a number of witnesses, including at least one Justice Department employee, with accompanying demands for relevant documents concerning the NBPP case. That employee has informed the Justice Department that he has been served. On November 20 the commission voted to approve procedures for an array of depositions and a complete discovery plan, but the USCCR has not divulged the number or the identities of those subpoenaed at this stage. Commissioner Todd Gaziano says that the USCCR will not be dissuaded by the Justice Department's refusal to cooperate and may proceed to vote as early as December 4 on conducting a full hearing.