"Friends in High Places
The Obama Justice Department went to bat for the New Black Panther party—and then covered it up.
BY Jennifer Rubin
Source The Weekly Standard"The case is straightforward. On Election Day 2008, two members of the New Black Panther party (NBPP) dressed in military garb were captured on videotape at a Philadelphia polling place spouting racial epithets and menacing voters. One, Minister King Samir Shabazz, wielded a nightstick. It was a textbook case of voter intimidation and clearly covered under the 1965 Voting Rights Act.
A Department of Justice trial team was assigned to investigate. They gathered affidavits from witnesses—one of the poll watchers was called a “white devil” and a “cracker.” A Panther told him he would be “ruled by the black man.” The trial team, all career Justice attorneys and headed by voting section chief Chris Coates, filed a case against the two Panthers caught on tape. Malik Zulu Shabazz, head of the national NBPP, and the party itself were also named based on evidence the party had planned the deployment of 300 members on Election Day and on statements after the incident in which the NBPP endorsed the intimidation at the Philadelphia polling station.
The trial team quickly obtained a default judgment—meaning it had won the case because the New Black Panther party failed to defend itself. Yet in May 2009, Obama Justice Department lawyers, appointed temporarily to fill top positions in the civil rights division, ordered the case against the NBPP dismissed. An administration that has pledged itself to stepping-up civil rights enforcement dropped the case and, for over a year, has prevented the trial team lawyers from telling their story.
But on June 4, J. Christian Adams, a veteran lawyer in Justice’s voting section and a key member of the trial team, resigned. His reasons were spelled out in a letter that also noted that the U.S. Commission on Civil Rights, which was investigating the dismissal, had subpoenaed him and Coates, but their superiors, in violation of federal law, had ordered them not to testify. He noted that “the defendants in the New Black Panther lawsuit have become increasingly belligerent in their rhetoric toward the attorneys who brought the case. . . . Their grievances toward us generally echo the assertions [by Justice Department officials] that the facts and law did not support the lawsuit against them.” Coates, too, has left the Voting Section, moving to South Carolina to work in the U.S. attorney’s office. Last Friday, the civil rights commission’s general counsel, David Blackwood, announced that he had received an email from Christian Adams’s attorney stating that Adams is now available to provide information to the commission. Commissioner Todd Graziano said they would schedule Adams’s appearance at a public hearing as soon as possible as the commission had been seeking his testimony for many months.
With Adams’s resignation and letter, a clearer picture is finally emerging of what led to the dismissal of the case, the actions of DoJ political appointees, the department’s misrepresentations about the case, and the Obama administration’s approach to civil rights enforcement.
Based on documents obtained by The Weekly Standard and interviews with Justice personnel, we now know far more about the sequence of events surrounding the dismissal. The then-acting assistant attorney general for civil rights, Grace Chung Becker, signed off on the case as the Bush administration was leaving office in January 2009. She confirms that the decision to file the case was an easy one. In response to my questions, she was emphatic that this was a serious case of voter intimidation. The trial team, which also included attorneys Robert Popper and Spencer Fisher, conducted its investigation and on January 8, 2009, filed suit against the NBPP. As the Panthers did not respond to the lawsuit, the department had a slam-dunk victory.
The trial team was poised to enter a default judgment in late April 2009. An order for a default of judgment was drafted and sent to the voting section management. On the morning of April 29, the acting deputy assistant attorney general for civil rights, Steven Rosenbaum, sent an email to Coates about the case. It was the first indication by any department official that something was amiss. “I have serious doubts about the merits of the motion for entry of a default judgment and the request for injunctive relief,” Rosenbaum, an Obama appointee, wrote. “Most significantly, this case raises serious First Amendment issues, but the papers make no mention of the First Amendment.” Rosenbaum asked Coates a series of questions—whether “the defendants make any statements threatening physical harm to voters or persons aiding voters,” for example, and what was the “factual predicate for enjoining the Party, as opposed to individual defendants”—which indicated that he was not familiar with the case and had not read the detailed memorandum accompanying the draft order.
The trial team assumed that Rosenbaum was simply confused about the applicable law. The notion that this was a problematic case would have been outlandish. With video evidence, multiple witnesses, and clear case law, it was one the easiest cases on which any of the trial team attorneys—who had more than 75 years of collective experience—had worked.
After sending the response, Coates and Robert Popper met with Rosenbaum and the then acting assistant attorney general for civil rights, Loretta King. People familiar with the discussions describe “two days of shouting.” The trial team now knew that DoJ political appointees were serious about undermining the case by using whatever arguments they could dream up, including First Amendment concerns. The team prepared a detailed memo dated May 6 explaining the factual and legal basis for the case. In 13 pages, the attorneys meticulously analyzed the law and the facts and rebutted any notion that the First Amendment could insulate the Panthers. The memo made clear that Rosenbaum’s and King’s arguments for dismissing the case were spurious. Rosenbaum and King, for example, argued that legal precedent involving protestors at abortion clinics would undermine the case. The trial team pointed out, however, that these cases were either inapplicable or actually supported the issuance of an injunction when there was a significant government interest (such as the protection of voting rights) at stake.
The arguments continued after the May 6 memo was submitted. During one meeting in a conference room on the 5th floor of the Main Justice building, Coates became so exasperated he threw the memo at Rosenbaum who had admitted not reading the trial team’s detailed briefing on the issues.
Rosenbaum and King sent a request to the appellate section asking their opinion of the case. The appellate attorneys sided with the trial team on May 13. Coates announced this to his team with the words “Good news.” They all agreed it would be unthinkable for their superiors to nix the case. They were wrong. On May 15, Coates received an order to dismiss the case against everyone but the baton-menacing Shabazz. And they were ordered to scale back the injunction against him to cover only the display of a weapon within 100 feet of a Philadelphia polling place until 2012. (No other behavior was enjoined.)
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.
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."
http://www.weeklystandard.com/articles/friends-high-places
April 2024 March 2024 February 2024 January 2024 December 2023 November 2023 October 2023 September 2023 August 2023 July 2023 June 2023 May 2023 April 2023 March 2023 February 2023 January 2023 December 2022 November 2022 October 2022 September 2022 August 2022 July 2022 June 2022 May 2022 April 2022 March 2022 February 2022 January 2022 December 2021 November 2021 October 2021 September 2021 August 2021 July 2021 June 2021 May 2021 April 2021 March 2021 February 2021 January 2021 December 2020 November 2020 October 2020 September 2020 August 2020 July 2020 June 2020 May 2020 April 2020 March 2020 February 2020 January 2020 December 2019 November 2019 October 2019 September 2019 August 2019 July 2019 June 2019 May 2019 April 2019 March 2019 February 2019 January 2019 December 2018 November 2018 October 2018 September 2018 August 2018 July 2018 June 2018 May 2018 April 2018 March 2018 February 2018 January 2018 December 2017 November 2017 October 2017 September 2017 August 2017 July 2017 June 2017 May 2017 April 2017 March 2017 February 2017 January 2017 December 2016 November 2016 January 2013 October 2011 September 2011 August 2011 July 2011 June 2011 May 2011 March 2011 January 2011 December 2010 October 2010 September 2010 August 2010 July 2010 June 2010 May 2010 April 2010 March 2010 February 2010 January 2010 December 2009 November 2009 October 2009 September 2009 August 2009 July 2009 June 2009 May 2009 April 2009 March 2009 February 2009 January 2009 December 2008 November 2008 October 2008 September 2008 August 2008 July 2008 June 2008 May 2008 April 2008 March 2008 February 2008 January 2008 December 2007 November 2007 October 2007 April 2007 March 2007 February 2007 January 2007 December 2006 November 2006 October 2006 September 2006 August 2006 July 2006 June 2006 May 2006 April 2006 March 2006 February 2006 January 2006 December 2005 November 2005 October 2005 September 2005 August 2005 July 2005 June 2005 March 2005 November 2004 October 2004