Commentary Magazine


Topic: Joseph H. Hunt

RE: No Executive Privilege Invoked

The Obama Justice Department has dropped all pretense of acting in a lawful, transparent mode with regard to the New Black Panther case. In a letter responding to the U.S. Commission on Civil Rights, the department in essence asserts: we don’t have to give you anything we don’t want to. And for this proposition, they cite not a single statute, regulation, Office of Legal Counsel opinion, or court decision. That is because there is none that would support the continued stonewalling.

Joseph H. Hunt of the Federal Programs Branch asserts that the “Department has designated Assistant Attorney for Civil Rights General Thomas E. Perez as the only Department witness to testify on its behalf before the Commission.” On what basis are they withholding percipient witnesses — including the trial team attorneys? Hunt doesn’t say. They just don’t want to. And Perez joined the department after the New Black Panther case was dismissed, so he really knows very little about the circumstances at issue. Yes, that is why he is the designee.

Hunt also makes clear that Perez is going to refuse to answer questions “concerning internal deliberation or other confidential matters.” Citation? None. Rationale? None. They don’t want to, I suppose.

Hunt writes in conclusion (with my comments in brackets):

Finally, we do not believe that the Commission’s subpoenas and requests override the well-established confidentiality interests in these types of materials that are integral to the Department’s discharge of its law-enforcement responsibilities. Thus, as we do in responding to congressional committees conducting oversight, we have sought to provide information to accommodate the Commission’s needs to the fullest extent consistent with our need to protect the confidentiality of the work product of our attorneys. [This is nonsense, by the way, since there is no attorney-client privilege between the executive branch and Congress; the American people are the “clients.”] The President has not asserted executive privilege, nor do we believe the President is required to assert executive privilege [because? citation?] for the Department to take appropriate steps to protect the law-enforcement deliberative confidentiality interests [now he’s just making stuff up] in this context. For the same reasons, we do not believe it is appropriate to appoint a special counsel. [The reason is circular — because the department thinks it doesn’t have to, it won’t appoint a special counsel to enforce the commission’s subpoenas. Yeah, no conflict of interest there, right?]

This is abject lawlessness, Nixonian in contempt for legal process. The Obama-Holder Justice Department is convinced that the executive branch can declare itself immune from scrutiny. The commission might choose to challenge the Justice Department in court, or wait for Congress to flip control and let a Republican majority subpoena the records and testimony. In the meantime, the Obama administration remains the least-transparent administration in history.

The Obama Justice Department has dropped all pretense of acting in a lawful, transparent mode with regard to the New Black Panther case. In a letter responding to the U.S. Commission on Civil Rights, the department in essence asserts: we don’t have to give you anything we don’t want to. And for this proposition, they cite not a single statute, regulation, Office of Legal Counsel opinion, or court decision. That is because there is none that would support the continued stonewalling.

Joseph H. Hunt of the Federal Programs Branch asserts that the “Department has designated Assistant Attorney for Civil Rights General Thomas E. Perez as the only Department witness to testify on its behalf before the Commission.” On what basis are they withholding percipient witnesses — including the trial team attorneys? Hunt doesn’t say. They just don’t want to. And Perez joined the department after the New Black Panther case was dismissed, so he really knows very little about the circumstances at issue. Yes, that is why he is the designee.

Hunt also makes clear that Perez is going to refuse to answer questions “concerning internal deliberation or other confidential matters.” Citation? None. Rationale? None. They don’t want to, I suppose.

Hunt writes in conclusion (with my comments in brackets):

Finally, we do not believe that the Commission’s subpoenas and requests override the well-established confidentiality interests in these types of materials that are integral to the Department’s discharge of its law-enforcement responsibilities. Thus, as we do in responding to congressional committees conducting oversight, we have sought to provide information to accommodate the Commission’s needs to the fullest extent consistent with our need to protect the confidentiality of the work product of our attorneys. [This is nonsense, by the way, since there is no attorney-client privilege between the executive branch and Congress; the American people are the “clients.”] The President has not asserted executive privilege, nor do we believe the President is required to assert executive privilege [because? citation?] for the Department to take appropriate steps to protect the law-enforcement deliberative confidentiality interests [now he’s just making stuff up] in this context. For the same reasons, we do not believe it is appropriate to appoint a special counsel. [The reason is circular — because the department thinks it doesn’t have to, it won’t appoint a special counsel to enforce the commission’s subpoenas. Yeah, no conflict of interest there, right?]

This is abject lawlessness, Nixonian in contempt for legal process. The Obama-Holder Justice Department is convinced that the executive branch can declare itself immune from scrutiny. The commission might choose to challenge the Justice Department in court, or wait for Congress to flip control and let a Republican majority subpoena the records and testimony. In the meantime, the Obama administration remains the least-transparent administration in history.

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What’s the Basis for Holder’s Stonewall?

In the flap over the New Black Panther Party case, the Justice Department appears to be making up rules as it goes along. Back on December 18, 2009, the U.S. Commission on Civil Rights, in a letter from its general counsel David Blackwood to the Justice Department’s Joseph H. Hunt, wrote to explain why the commission had resorted to sending subpoenas to obtain information on the controversial dismissal of the voter-intimidation case and to try to dislodge the reason for the Justice Department’s apparent refusal to cooperate with the commission. He wrote:

To allay your concerns, the Commission requested a meeting where we would negotiate revisions to our discovery plan so as to eliminate or minimize the likelihood the Commission’s work would interfere with OPR’s pending investigation. Your refusal to schedule a meeting even to discuss the Commission’s pending discovery requests and depositions suggests that DOJ is not interested in working to develop a path that will allow each agency to fulfill its statutory obligation. As you are aware, the Commission first began requesting related information from the Department on June 16, 2009, six months ago. After six months passed without a substantive response from DOJ, the Commission felt it necessary to issue subpoenas.

Hunt wrote back on December 23, denying that the department was refusing to cooperate and asserting that it wasn’t unwilling to meet with the commission. Hunt seemed to suggest that the department wanted the chance to “set forth its position in writing,” but alas, it never consented to a meeting and still has not presented a viable legal theory for refusing to cooperate. In its blizzard of excuses in its discovery response, Eric Holder’s Justice Department asserts the attorney-client privilege. But a 1982 opinion of the Office of Legal Counsel specifically found that “the interests implicated by the attorney-client privilege generally are subsumed under a claim of executive privilege … and the considerations of separation of powers and effective performance of constitutional duties determine the validity of the claim of privilege.” A 1986 opinion similarly makes clear that the attorney-client privilege “is not usually considered to constitute a separate basis [from executive privilege] for resisting congressional demands for information.” In short, there really isn’t an attorney-client privilege, just executive privilege, but the Obami seem unwilling to use that politically charged defense. Read More

In the flap over the New Black Panther Party case, the Justice Department appears to be making up rules as it goes along. Back on December 18, 2009, the U.S. Commission on Civil Rights, in a letter from its general counsel David Blackwood to the Justice Department’s Joseph H. Hunt, wrote to explain why the commission had resorted to sending subpoenas to obtain information on the controversial dismissal of the voter-intimidation case and to try to dislodge the reason for the Justice Department’s apparent refusal to cooperate with the commission. He wrote:

To allay your concerns, the Commission requested a meeting where we would negotiate revisions to our discovery plan so as to eliminate or minimize the likelihood the Commission’s work would interfere with OPR’s pending investigation. Your refusal to schedule a meeting even to discuss the Commission’s pending discovery requests and depositions suggests that DOJ is not interested in working to develop a path that will allow each agency to fulfill its statutory obligation. As you are aware, the Commission first began requesting related information from the Department on June 16, 2009, six months ago. After six months passed without a substantive response from DOJ, the Commission felt it necessary to issue subpoenas.

Hunt wrote back on December 23, denying that the department was refusing to cooperate and asserting that it wasn’t unwilling to meet with the commission. Hunt seemed to suggest that the department wanted the chance to “set forth its position in writing,” but alas, it never consented to a meeting and still has not presented a viable legal theory for refusing to cooperate. In its blizzard of excuses in its discovery response, Eric Holder’s Justice Department asserts the attorney-client privilege. But a 1982 opinion of the Office of Legal Counsel specifically found that “the interests implicated by the attorney-client privilege generally are subsumed under a claim of executive privilege … and the considerations of separation of powers and effective performance of constitutional duties determine the validity of the claim of privilege.” A 1986 opinion similarly makes clear that the attorney-client privilege “is not usually considered to constitute a separate basis [from executive privilege] for resisting congressional demands for information.” In short, there really isn’t an attorney-client privilege, just executive privilege, but the Obami seem unwilling to use that politically charged defense.

So has the president or his attorney general invoked executive privilege? Commissioner Todd Gaziano told me it’s not clear. He says, “Not only has the Department refused to give us the information — the documents and answers to which we are statutorily entitled — but it still has not given us a legal argument or justification for not doing so.” He noted that this occurs “in the face of binding department authority,” which shows there is no valid attorney-client privilege.

The White House thought it appropriate to invoke executive privilege to block testimony of its social secretary, so perhaps that’s where they’re going with this. But that privilege arguably can only be invoked by the president or his department heads, in this case Holder. Maybe if Obama ever gives a press conference he can tell us. Or maybe at the upcoming confirmation hearing of the not-yet-selected No. 2 man in the Justice Department, an enterprising senator can find out why the department thinks it can make up new rules, avoid explaining what exactly they are, and refuse to permit anyone to peer into a decision that apparently is so indefensible, it requires a Nixonian-like defensive strategy.

While Holder has prevented his employees from testifying before the commission, former voting-rights section chief Chris Coates has made his views known. His rationale (which should be read in full here) for bringing the case against the New Black Panther Party is a tribute to the notions of equal protection and fairness. The Holder team won’t tell us what was wrong with that analysis and why it countermanded the decision of Coates and his team, dismissing a case as egregious as the New Black Panther Party matter. As Coates said in his goodbye remarks to his colleagues:

A lot has been said about the politization [sic] of the Civil Rights Division. I believe that one of the most detrimental ways to politicize the enforcement process in the Voting Section is to enforce the provisions of the Voting Rights Act only for the protection of certain racial or ethnic minorities; or to take the position that the Voting Section is not going to enforce certain provision [sic] of any of the voting statutes the Voting Section has the responsibility to enforce. Such decisions carry with them obvious, enormous implications for partisan political struggles.

Well that seems to be what’s going on here — made-up rules and politics run rampant in the Justice Department. Not what the Obami promised, is it?

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The Black Panther Cover-Up

The Justice Department has ordered its career trial lawyers who have been subpoenaed by the U.S. Commission on Civil Rights not to appear to provide testimony or give documents in the investigation of DOJ’s dismissal of the New Black Panther Party voter-intimidation case. The Washington Times explains:

Joseph H. Hunt, director of the Justice Department’s Federal Programs Branch, ordered the lawyers’ silence in a letter to the attorney for J. Christian Adams, the lead attorney for the department in the New Black Panther case. The letter said “well-established” and “lawful” Justice Department guidelines prohibited Mr. Adams’ cooperation in the commission probe.

How a personnel guideline can supersede the force of a subpoena issued by the commission remains a mystery. The report notes:

Todd Gaziano, a nonpartisan member of the Civil Rights Commission, challenged the Justice Department’s ruling, saying that the regulations cited do not apply and that the commission is “duly authorized by statute to review and report on enforcement activities of the Justice Department and other similar agencies.”

“Our job places a premium on our role as a watchdog of federal and state enforcement agencies, and to that end, Congress has instructed all agencies to comply fully with our requests,” he said. … [Gaziano] said the Justice Department “had it exactly backwards” when it suggested that there could be negative consequences for those who comply with the commission’s subpoenas. He said a lawyer cannot refuse to comply with a subpoena he knows to be lawful.

A source tells me that Adams was “not quite” threatened with the loss of his job, but plainly he and his colleague, Christopher Coates, the voting rights section chief, are being strong-armed to disregard a lawful subpoena. This is abject lawlessness, the sort of executive imperiousness that, if practiced by a Republican administration, would bring howls of protest from Congress, the media, and liberal lawyers’ groups. The Obama Justice Department doesn’t want to respond to a subpoena because they have a personnel rule? Next thing you know they’ll be claiming executive privilege for a social secretary. Oh yes, that’s right …

Now as for the merits, the Justice Department spokesman continues to spew the administration line that the voter-intimidation case brought by DOJ’s career lawyers was not supported by the law and the facts. But of course the lawyers disagree, claiming that their best legal judgment was overridden by political appointees without justification. They have a story to tell, with documents, firsthand accounts of meetings and conversations and e-mails with the political appointees’ own remarks, which they say will substantiate their position. But the Justice Department won’t let any of that out, nor will it say what specifically about the case lacked factual or legal support.

It’s not clear where we go from here. The Justice Department lawyers may appear anyway, testing whether the Obama administration would go as far as to fire them for complying with a subpoena. A deal might be negotiated between DOJ (which is apparently concerned that something quite distasteful may emerge) and the commission to provide some portion of the requested information. Or Congress might wake up, fulfill its obligation to conduct some real oversight of the Obama administration (which once again is telling us that the rules that apply to everyone else don’t apply to the White House), and actually hold a hearing on the matter.

The crew that excoriated the “politicization” of justice is now in a furious fight to cover their tracks and prevent career lawyers from blowing the whistle on Obama political appointees who reached down to pull the plug on a serious case of voter intimidation. The Obami need not be accountable or “transparent” to anyone, they would have us believe. We’ll see if that proves to be a winning position.

The Justice Department has ordered its career trial lawyers who have been subpoenaed by the U.S. Commission on Civil Rights not to appear to provide testimony or give documents in the investigation of DOJ’s dismissal of the New Black Panther Party voter-intimidation case. The Washington Times explains:

Joseph H. Hunt, director of the Justice Department’s Federal Programs Branch, ordered the lawyers’ silence in a letter to the attorney for J. Christian Adams, the lead attorney for the department in the New Black Panther case. The letter said “well-established” and “lawful” Justice Department guidelines prohibited Mr. Adams’ cooperation in the commission probe.

How a personnel guideline can supersede the force of a subpoena issued by the commission remains a mystery. The report notes:

Todd Gaziano, a nonpartisan member of the Civil Rights Commission, challenged the Justice Department’s ruling, saying that the regulations cited do not apply and that the commission is “duly authorized by statute to review and report on enforcement activities of the Justice Department and other similar agencies.”

“Our job places a premium on our role as a watchdog of federal and state enforcement agencies, and to that end, Congress has instructed all agencies to comply fully with our requests,” he said. … [Gaziano] said the Justice Department “had it exactly backwards” when it suggested that there could be negative consequences for those who comply with the commission’s subpoenas. He said a lawyer cannot refuse to comply with a subpoena he knows to be lawful.

A source tells me that Adams was “not quite” threatened with the loss of his job, but plainly he and his colleague, Christopher Coates, the voting rights section chief, are being strong-armed to disregard a lawful subpoena. This is abject lawlessness, the sort of executive imperiousness that, if practiced by a Republican administration, would bring howls of protest from Congress, the media, and liberal lawyers’ groups. The Obama Justice Department doesn’t want to respond to a subpoena because they have a personnel rule? Next thing you know they’ll be claiming executive privilege for a social secretary. Oh yes, that’s right …

Now as for the merits, the Justice Department spokesman continues to spew the administration line that the voter-intimidation case brought by DOJ’s career lawyers was not supported by the law and the facts. But of course the lawyers disagree, claiming that their best legal judgment was overridden by political appointees without justification. They have a story to tell, with documents, firsthand accounts of meetings and conversations and e-mails with the political appointees’ own remarks, which they say will substantiate their position. But the Justice Department won’t let any of that out, nor will it say what specifically about the case lacked factual or legal support.

It’s not clear where we go from here. The Justice Department lawyers may appear anyway, testing whether the Obama administration would go as far as to fire them for complying with a subpoena. A deal might be negotiated between DOJ (which is apparently concerned that something quite distasteful may emerge) and the commission to provide some portion of the requested information. Or Congress might wake up, fulfill its obligation to conduct some real oversight of the Obama administration (which once again is telling us that the rules that apply to everyone else don’t apply to the White House), and actually hold a hearing on the matter.

The crew that excoriated the “politicization” of justice is now in a furious fight to cover their tracks and prevent career lawyers from blowing the whistle on Obama political appointees who reached down to pull the plug on a serious case of voter intimidation. The Obami need not be accountable or “transparent” to anyone, they would have us believe. We’ll see if that proves to be a winning position.

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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.

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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