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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A legal standoff is likely if Holder defies a subpoena issued to the department or seeks to prevent individual Justice Department employees from complying. Justice is charged with enforcing subpoenas in federal court--an action Holder's subordinates certainly would not take against their boss or colleagues. Spakovsky says: "If Holder defies the subpoena, there should be calls for congressional action. There certainly would have been during the Bush administration." Reynolds says that he doesn't think "it will get to that": If "the Department of Justice is comfortable with its decision it should have no problem discussing the facts and its rationale in a public setting."

However the legal wrangling progresses, the USCCR has raised the NBPP case's profile. Any efforts to block witnesses from appearing will certainly attract notice and may spur Republicans in Congress to address the issue by resolution or in oversight hearings. Clegg notes, "They can certainly put pressure, public pressure on the Justice Department to expose a cover-up if they can get anybody to listen." If there was improper pressure brought to bear on career attorneys, "That's a story," says Clegg.

Meanwhile, Republican congressmen have been redoubling their efforts. On November 10, Wolf and Lamar Smith of Texas sent a letter to the attorney general expressing concern "that close to three months after OPR's inquiry began, we have yet to receive a clear explanation of the basis on which the Civil Rights Division dismissed the complaint against the New Black Panther party." On November 16, Wolf followed up with a letter asking for copies of reports prepared by the trial team in the NBPP case.

A minority of the commissioners is not pleased with pursuing the matter and would rather defer to Holder. Two Democratic commissioners have publicly criticized the commission's investigation of the NBPP case, deeming it "deeply troubling." One can expect that future Obama appointees will concur. There is also speculation that the Democratic Congress and White House will try to disband the USCCR.

But the Obama team may simply choose to hunker down until it can stock the USCCR with sympathetic commissioners. Given the staggered terms, the present majority likely will continue until the end of 2010, when President Obama will be able to replace the chairman and another commissioner.

For now, the commission is doing what no other government entity is: challenging the Justice Department's lack of transparency and politicization. An effort by the administration to shut down or muzzle the commission would, as Clegg points out, "look ham-handed" if its NBPP work gains "traction." It'll be one more controversy the Obama administration could do without.

Jennifer Rubin is a lawyer and a contributing editor to Commentary.