It is about to get harder for both the Obama administration and the mainstream media to downplay the New Black Panther party scandal.
The mainstream media did their best to ignore this blatant case of voter intimidation by two New Black Panther party members at a Philadelphia polling place on Election Day 2008. Though the threatening behavior was captured on videotape, Obama political appointees dismissed the case on the eve of a default judgment. When in early June a key trial team member, Justice Department attorney J. Christian Adams, resigned and then testified before the U.S. Commission on Civil Rights, the media grudgingly reported on his testimony.
But, despite Adams’s testimony that the case was indicative of a widespread aversion in the Voting Section to colorblind enforcement of the civil rights laws, the media framed the story as an isolated case unworthy of continuing coverage. After all, just one witness was claiming that this was the mindset in the Justice Department. And besides, the head of the Civil Rights Division, Thomas Perez, had testified before both Congress and the commission that the case was legally and factually defective. He had also insisted there was no opposition in the department to enforcing civil rights laws against minority defendants.
In fact, there is ample evidence, including Justice Department emails obtained by The Weekly Standard, that Perez testified untruthfully. There is every reason to believe, moreover, that if allowed to testify, several other Justice Department attorneys would substantiate Adams’s allegations and contradict Perez’s sworn testimony. Not to mention that the department itself acknowledged last week that the matter of biased enforcement of voting laws requires investigation.
Until now, the Justice Department has refused to allow its lawyers to testify. On April 21, Jody Hunt, director of federal programs, whose office oversees the department’s dealings with other branches of government, emailed Adams’s attorney. Hunt explained:
On behalf of the Department of Justice, I have communicated to the Commission that your client has not been authorized to give testimony at the hearing. Indeed, as I understand it, your client has not been scheduled by the Commission to provide testimony at the hearing. The Commission has accepted the Department’s offer to hear testimony from Tom Perez, the Assistant Attorney General for the Civil Rights Division, at a separate hearing to be scheduled in May.
Department sources say that members of the trial team objected strongly and raised their objections with Hunt in writing. On May 11, for example, Adams emailed Hunt. He challenged the basis for the department’s refusal to allow his testimony, referring to his attorney’s legal citations. He then implored the department to change its position:
I would ask you to reconsider this decision and authorize at least one of the individuals who had factual and legal familiarity with the case to provide information to the Commission, whether me, former Voting Section Chief Christopher Coates, Deputy Chief Robert Popper, Attorney Spencer Fisher, or all four of us.
Adams specifically warned Hunt of the danger to the department in allowing an attorney unfamiliar with the New Black Panther party case, Perez, to testify instead of the attorneys who had the most direct knowledge of the case:
The first reason that the decision should be reconsidered is that there is the risk that inaccurate statements will be made about the case. I do not suggest that the scheduled witness will knowingly make false statements. Rather, my concern is that the scheduled witness did not participate in the case whatsoever, and will instead rely on characterizations of the facts and law provided by other Department employees, which I have reason to believe may be wildly inaccurate at best. Over the last several months, unattributed statements about the case by Department officials have been cited in media reports that are demonstrably false. Because the statements are never attributed, it is impossible to know whether these are people entirely unfamiliar with the matter, or are individuals upon whom the scheduled witness will rely. If the latter, there is a genuine risk that the scheduled witness will unknowingly provide inaccurate and incorrect testimony about the case. This could result in an extremely embarrassing situation for both the witness and the Department. . . . If the scheduled witness were to testify that there was no evidence, or insufficient or inadmissible evidence, to support agency liability [the legal theory for holding the New Black Panther Party and its head responsible], such testimony could prove to be grossly inaccurate.
He also warned Hunt:
Commanding our silence has created an inference that the attorneys who brought the case pursed a meritless action. Indeed, any future statements that the case did not have factual and legal merit would reinforce this false inference. For example, there was testimony to the House Judiciary Committee [by Perez] that “Rule 11 [prohibiting frivolous actions] required” the dismissal of the action. Not only is this statement inaccurate, but it also calls into question the ethics of the attorneys who approved and brought the case. I can attest that my three colleagues were thoughtful, diligent, hard working, and beyond reproach throughout this case. Their experience with the Voting Rights Act is unmatched in any other part of the Department. Indeed, I would submit Christopher Coates and Robert Popper have far more experience in litigating voting law combined than just about any pair of Department attorneys you could produce.
To put it bluntly, Adams was warning the Department that Perez had already testified inaccurately before Congress and that allowing him to do so again would be an intentional attempt to mislead the civil rights commission.
Shortly thereafter Adams received a call from the Voting Section head, Chris Herren. Herren said he understood Adams wanted to meet with Perez. Adams said he had not asked for a meeting. Herren repeated, “You said you wanted to meet with Perez.” Adams reiterated that he had not. It became obvious, however, that Perez wanted to meet with him.
Hunt arranged a meeting on Tuesday, May 12, three days before Perez was to testify before the civil rights commission. Adams, Popper, Perez, Hunt, and two other department attorneys met in the 5th floor conference room in the Main Justice Department building. Coates joined them by speaker phone.
Coates, Popper, and Adams spoke for approximately 45 minutes. Coates informed Perez that the case had been dismissed because of hostility to equal enforcement of the civil rights laws. Popper went next, explaining how solid the case was. He became animated and lashed out at Perez for testifying that the attorneys had violated Rule 11—that is, committed an ethical violation. Adams spoke last, making the case that the 14th Amendment required equal enforcement of the civil rights laws and that it was dangerous for the department and the country to go down the road of unequal enforcement of the law.
During the meeting Perez said nothing. Was he taking the information to heart so he could investigate the serious allegations or simply, like an attorney in an explosive case, taking the deposition of the most powerful witnesses to see how effective they were and what damage they could do?
The answer became clear that Friday when Perez testified before the civil rights commission. He reiterated his view that the case was legally and factually deficient. Perhaps wary of Popper’s reaction, he avoided restating that the trial team had acted contrary to Rule 11.
Perez then testified under oath that the department had no attorneys opposed to the equal enforcement of the voting rights law. “We don’t have people that are of that ilk, sir,” he said in response to the questioning of commissioner Todd Gaziano. This was a blatant misstatement, as Coates and Adams had told him three days before. There was also this exchange:
Commissioner Gaziano: If someone came to you and said that someone—someone in your Division, I should say, came to you and said, “A supervising attorney” or “a political appointee” made the statement that the voting rights laws should never be enforced against blacks or other racial minorities, you would investigate that report, wouldn’t you?
Asst. Atty Gen. Perez: I would take a look at the person who made the statement. I would take a look at the statement. And we would have a conversation about it.
Commissioner Gaziano: You would want to interview the people who were supposedly present when that statement was made, wouldn’t you?
Asst. Atty Gen. Perez: Yes, sir.
But Perez conducted no investigation after being briefed by not one, but three attorneys.
Gaziano told me, “Perez’s refusal to give me a straight answer to many of my questions suggested he might be trying to hide something. If there is evidence that he knew of statements or actions in his division demonstrating hostility to the race-neutral enforcement of the civil rights laws before he testified, that would be very troubling. If so, his testimony would be misleading at best, instead of simply uninformed.”
Then suddenly last week, months after Perez’s testimony, the inspector general of the Department of Justice, who previously had refused to investigate the matter, sent a letter to representatives Lamar Smith and Frank Wolf advising them that in response to their requests in July and August the inspector general would undertake an investigation of the Voting Section’s enforcement of civil rights laws. Echoing the civil rights commission’s yearlong investigation, the inspector general’s probe will examine
the types of cases brought by the Voting Section and any changes in these types of cases over time; any changes in the Voting Section’s enforcement policies or procedures over time; whether the Voting Section has enforced the civil rights laws in a nondiscriminatory manner; and whether any Voting Section employees have been harassed for participating in the investigation or prosecution of particular matters.
It remains to be seen whether this is an effort by the department to take the investigation behind closed doors or actually to get to the bottom of a mushrooming scandal.
In any event, despite the Obama team’s best efforts to stonewall and the mainstream media’s indifference to an abuse of power in a Democratic administration, the notion that the New Black Panther party case is “no big deal” is crumbling. We know that a high ranking political appointee presented misleading testimony under oath and that multiple witnesses would testify to the Obama administration’s hostility to the equal enforcement of our civil rights laws. Now an internal investigation is exploring those issues. In a Republican administration that would be front-page news.
Jennifer Rubin is Commentary magazine’s contributing editor.