Commentary Magazine


The Wrongdoing, the Cover-Up, and Executive Privilege

Like any administration snared in a Beltway scandal, the Obama team has two problems in the New Black Panther Party scandal: the wrongdoing and the cover-up.

The wrongdoing is not merely that the Obama administration dismissed a blatant case of voter intimidation. It is not merely that an NAACP attorney pressured the Obama team to dump the case. It is not merely that the Obama Justice Department explicitly told attorneys not to enforce Section 8 of the Voting Rights Act, which helps prevent voter fraud. It is that the Obama team believes that the civil rights laws run only one way and offer protection only to certain racial or ethnic groups. That’s not the law (or the Equal Protection Clause has no meaning), and it runs afoul of Americans’ basic sense of fairness. That is why the Obama administration denies that it holds such a view. They may be radicals, but they aren’t dumb.

The cover-up takes two forms. There are the false statements put out by the Justice Department and made under oath by the assistant attorney general for civil rights, Thomas Perez, first, denying that political appointees were involved in the case and, second, disclaiming the existence of hostility toward race-neutral enforcement of voting laws. But there is also the Nixonian abuse of executive privilege to prevent scrutiny of the Justice Department. It is this latter issue that has gotten too little attention.

The administration has refused to produce witnesses and documents, employing a spurious claim of “deliberative process” privilege. Case law and Justice Department memoranda make clear that this is an offshoot of the executive privilege that is applicable only when invoked by the president (or, some would say, a Cabinet-level official). But Obama hasn’t done this. After all, “executive privilege” sounds bad. It reeks of “cover-up.” But without a formal invocation of the privilege, it is lawlessness, pure and simple, to withhold documents and witnesses in response to lawful subpoenas, FOIA requests, and a federal statute (which obligates the DOJ to cooperate with the U.S. Commission on Civil Rights).

It was both inaccurate and nervy for the Justice Department’s spokesman to claim that Chris Coates’s testimony was short on facts. To begin with, Coates cited example after example to support the conclusion that the Obama team considers only racial, ethnic, and language minorities to be protected by civil rights laws. But more to the point, he was prevented from disclosing even more details because of the administration’s privilege claim. Again and again, Coates explained that he couldn’t answer questions out of respect for the DOJ’s position. Similarly, the log obtained by Judicial Watch lists dozens of e-mails and documents transmitted between political appointees and the voting section that would substantiate testimony by Coates. All that information remains hidden from view because the Justice Department is concealing it.

The mainstream media have just woken up to the extent and importance of the scandal, so perhaps they will get around to this aspect of the case. Yet I get the feeling that if it had been the Bush administration telling whistleblowers not to testify and withholding, absent any legal basis, key documents that could implicate high-ranking officials, the media would have already been all over this.