Friends in High Places
The Obama Justice Department went to bat for the New Black Panther party—and then covered it up.
Jun 21, 2010, Vol. 15, No. 38 • By JENNIFER RUBIN
The actions of King and Rosenbaum were unprecedented in the collective experience of the trial team. They were not alone in that assessment. A former associate attorney general for the civil division Greg Katsas testified before the civil rights commission on April 23, 2010, and termed the Panthers’ actions a blatant case of voter intimidation. He said it was a “straightforward and overwhelmingly strong case” and that the Panthers’ conduct was “egregious and intentional.” As for the party itself and its leadership, Katsas said that under “general principles of agency law” they were liable.
From the onset, Justice has denied that any political appointees were involved in the decision to dismiss the case. This line was repeated in multiple letters to and face-to-face meetings with Republican representatives Frank Wolf and Lamar Smith and in statements to the media. We now know that this is incorrect. In interrogatory answers supplied to the civil rights commission, the department acknowledged that Attorney General Eric Holder was briefed on the decision to dismiss the case and that the number three man in Justice, Associate Attorney General Tom Perrelli, was consulted as well. Katsas testified, “Certainly DoJ’s decision to abandon all claims against the party, Malik Shabazz, and Mr. Jackson [the second polling place intimidator], despite their refusal to even defend the case, would have qualified as important enough for the leadership of the Civil Rights Division to raise with [Perrelli].” The same is true of the decision to seek only a narrow injunction against the billy club-wielding defendant. He notes that the filing of the case may have been routine, but the decision to dismiss it was so extraordinary that someone of Perrelli’s rank must certainly have played an “active role.”
The department is, moreover, trying to characterize King and Rosenbaum, who instructed the trial team to dismiss the case, as “career attorneys with over 60 years of experience.” It is true that they both served in career positions at Justice in the past. But under the Federal Vacancies Reform Act, as soon as someone is appointed to fill a political position—as Rosenbaum and King were early in the Obama administration—they are political appointees.
Neither King nor Rosenbaum has directly worked on a voting rights case since the mid-1990s and both have received sanctions of hundreds of thousands of dollars by federal court judges for bringing unmeritorious cases and for failing to respond to court orders. In January 2010, a federal court judge in Kansas fined King and Rosenbaum for failing to respond to interrogatories in a housing discrimination case. Former civil rights division attorney Hans von Spakovsky has written: “That particular sanction is also very unusual—I have never seen a sanction order directed at individual lawyers that specifically says their employer is not responsible for paying the costs. . . . During the Bush administration, when liberals claim there was politicization going on in the division, I am not aware of a single such sanction.” King and the Justice Department were also ordered to pay $587,000 in attorneys’ fees and fines for bringing an unmeritorious claim during the Clinton administration in Johnson v. Miller. (In that case the court also took DoJ and King to task for allowing the ACLU to unduly affect the litigation decisions of the department.)
The administration’s internal investigation also appears to have been fraudulent. Under ongoing pressure from Representatives Smith and Wolf, an investigation by the Office of Professional Responsibility (OPR) was finally ordered to commence in July 2009. Until a few days before Adams’s resignation, however, none of the trial team had been interviewed by OPR investigators.
Furthermore the department has been less than candid in congressional testimony. In December 2009, Assistant Attorney General Thomas Perez testified before the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, and he either did not understand the case fully or chose to disregard the documentation the trial team had put together. Perez said, for example, that Shabazz had received the “maximum penalty.” An experienced voting rights lawyer scoffs at the statement. “The maximum penalty is Leavenworth.” Perez then suggested that the attorneys on the trial team might have violated Federal Rule 11, which prohibits lawyers from bringing frivolous actions. The trial team was angered at the public insinuation that they had been derelict in their professional responsibilities.
In written responses to the civil rights commission, the Justice Department has claimed there was no evidence of involvement by outside groups—specifically the NAACP. Yet there is substantial reason to doubt this assertion. An attorney for the NAACP, Kristen Clarke, has admitted that she spoke to department attorneys about the case and shared the complaint with others. (In a deposition she also said that a department lawyer sent her news clippings of the case.) She spoke to a voting section attorney Laura Coates (no relation to Chris Coates) about the case at a Justice Department function. Clarke asked Coates, who she assumed was sympathetic, when the Panther case was going to be dismissed. The comment suggested that the NAACP had been pushing for such an outcome, and Coates reported the conversation to her superiors. Under oath in a deposition with the civil rights commission, however, Clarke denied six times that she had any conversations with Justice Department attorneys. When shown an email from a department attorney to her calling a Washington Times report on the NBPP case nothing but “lies” and declaring “This is CC’s doing” she incredibly denied (despite her long association with him) that she understood the reference was to Chris Coates.
While the interference by political appointees in the NBPP case has been egregious, there is a critical issue with implications far beyond this single case: Whether the attorneys who populate the civil rights division of the Justice Department believe that civil rights laws exist only to protect minorities from discrimination and intimidation by whites. In a farewell address to his colleagues before his reassignment to a U.S. attorney’s office, Coates spoke about this widespread sentiment and why it was antithetical to the department’s mission to seek equal enforcement of federal laws.
Former voting rights attorneys confirm that the belief is omnipresent in the Justice Department. DoJ attorneys openly criticized the Panther case, objecting not to any lack of evidence or to the legal arguments but to the notion that any discrimination case should be filed against black defendants. There are instances of attorneys refusing to work on cases against minority defendants. In 2005, for example, Coates pursued, filed, and won a case (upheld on appeal to the Fifth Circuit in 2009) of egregious voter discrimination by black officials in Noxubee County, Mississippi. Colleagues criticized Coates for filing the case and refused to work on it.
Liberal civil rights lawyers argue that because “a history of official discrimination” can be one subsidiary factor in voting cases it “wipes out every other factor” and prohibits cases from being brought against blacks. And further, that since “socio-economic” factors can be considered in determining whether voting discrimination has occurred, these cases cannot be brought against black defendants until there is economic parity between blacks and whites. Such attorneys use phrases like “traditional civil rights cases” and “traditional civil rights victims” to signal that only minority victims and white perpetrators concern them. Justice sources tell me that career attorneys have been “assured” that cases against minority defendants won’t be brought. In testimony before the civil rights commission, Thomas Perez denied he was aware of any such conversations or sentiments.
To date the Democratic Congress has exercised virtually no oversight over either the Panther case or the department’s civil rights enforcement approach generally. The OPR investigation shows no sign of completion. Neither Holder nor Perrelli has been questioned in depth about his participation in the case or about the allegations that Justice attorneys don’t intend to enforce civil rights laws against anyone other than white defendants.
Smith and Wolf, who just this week fired off two-dozen questions to Attorney General Eric Holder, continue to pursue the case, but without Democratic support they cannot subpoena either witnesses or documents. That may change after the November election. If the House of Representatives or Senate flips to Republican control and new committee chairmen decide to engage in actual oversight, Perrelli and Holder may find themselves forced by subpoenas to tell the complete NBPP story and explain why Obama’s Justice Department believes the civil rights laws exist only to protect citizens of certain races.
Jennifer Rubin is a contributing editor to Commentary magazine.