Commentary Magazine


Getting Answers, Perhaps

When last we left the standoff between the U.S. Commission on Civil Rights (USCCR) and the Obama Justice Department concerning dismissal of the New Black Panther Party (NBPP) voter-intimidation case, the DOJ had interceded to at least delay the deposition of two of its employees, both members of the NBPP trial team. As it indicated in its open meeting last Friday, the USCCR is now directing its inquiries to the DOJ itself, although the depositions of DOJ employees have only been postponed. Today the USCCR’s general counsel, David Blackwood, fired off a letter and voluminous document request to Joseph H. Hunt, the director of the DOJ’s Federal Programs Branch. The letter, a copy of which I have received, recaps the DOJ’s stonewalling:

In the present case, beginning in June 2009, the Commission has consistently requested the voluntary production of information from the Department, without any success. It was only after the Department, by letter dated September 9, 2009, formally indicated that no information would be forthcoming (pending completion of an investigation by the Office of Professional Responsibility), and subsequently ignored the Commission’s letter of September 30, 2009, that subpoenas were issued by the Commission. While your letter refers to an ongoing “dialogue” between the Department and the Commission, it is the dearth of cooperation on the part of the Department that has resulted in the Commission’s need to issue subpoenas.

The DOJ apparently was skeptical of the USCCR’s authority to issue subpoenas, but Blackwood reminds Hunt: “In this regard, your attention is directed to 42 U.S.C. § 1975a(e)(2). This provision grants the Commission the authority to issue subpoenas for the attendance of witnesses and the production of written documents or other materials. This provision in no way prohibits or excludes requests directed to federal agencies or their employees.” And he also recites previous incidents in which as late as 2004 then Chairman Mary Frances Berry directed document requests to the DOJ’s Civil Division, which did cooperate.

It doesn’t appear that the DOJ has formally raised executive-privilege issues, but in case they are mulling that option, Blackwood reminds Hunt that

“to the extent that some documents or other communications may involve internal pre-decisional deliberative discussions, it should be understood that: (1) as between the Commission and the Department the only legal privilege that exists is the President’s constitutionally-based executive privilege, (2) the executive privilege must be invoked by the President, or possibly by a Department Head on the President’s behalf, (3) the President should not routinely invoke executive privilege, and may not do so to shield potential wrongdoing, and (4) the President’s executive privilege is not absolute and should not be read broadly to frustrate the core functions of an investigative agency. “

And finally, Blackwood bats down any suggestion that the DOJ’s internal investigation should forestall a legally authorized subpoena, noting that if in fact actual misconduct occurred by political appointees, “any perceived misconduct within its purview relating to matters of civil rights enforcement strengthens the requisite nature of the Commission’s discovery requests and weakens any claim that matters must be protected from review.”

Along with the letter is a 26-page discovery request, including both interrogatories and requests for documents. These cover every imaginable line of inquiry, including this query:

Identify and describe in detail the decision-making process within DOJ relating to the New Black Panther Party litigation. This request includes, but is not limited to, the decision-making processes that: (i) led to the initial filing of said litigation; (ii) the decision to seek a default; (iii) the decision to delay seeking a default judgment; (iv) the decision to seek review by the appellate section; (v) the decision to review the relief sought in the original complaint; and (vi) the decision to dismiss certain defendants and to reduce the relief sought against the remaining defendant.

And this curious one, which suggests that outside groups may have played a role in the decision to dismiss the case:

Identify and describe in detail all communications, whether oral or written, by or between the Department and any outside third parties with regard to the New Black Panther Party litigation. This request includes, but is not limited to, all communications with Kristen Clarke of the NAACP Legal Defense Fund.

Others suggest that career attorneys were run over by the Obama political appointees: “Identify all career employees in the Civil Rights Division who objected to the ultimate relief sought in the New Black Panther Party litigation.” There are 49 interrogatories (with subparts on many) and 51 categories of requested documents. I am informed by someone with requisite knowledge that “this particular subpoena is a bi-partisan appeal for information, that includes specific requests from Democratic commissioners.”

Unless Obama is prepared to invoke executive privilege, it seems we are about to get to the bottom of this case.

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