Commentary Magazine


Topic: Office of Professional Responsibility

Holder — a People Pleaser!

Another entry in the Eric Holder “Can you believe this?” file comes with this report (h/t Main Justice):

In January, after a review by the Office of Professional Responsibility concluded that the authors of the torture memos had committed professional misconduct, Holder allowed the supervisor of that office, David Margolis, to overturn the committee’s conclusion and absolve the lawyers of wrongdoing. Sources close to Holder say that he was disappointed by Margolis’s decision and believed the finding of misconduct was correct — but was unwilling to overrule a nonpolitical employee on such a sensitive issue.

Disappointed? Indeed, he must have been, for the entire mission of DOJ in the first two years of the administration seems to have been defined by a “not Bush” or “get Bushies” mentality. Don’t let the civil rights laws be applied against Black defendants. Don’t follow the Office of Legal Counsel opinion on DC voting rights. Release detainee-abuse photos. Go after John Yoo and Jay Bybee. The problem, however, was that each of these highly politicized decisions was legally flawed and politically untenable even to those in the Department. After all, career attorneys at DOJ did not welcome the investigation of one set of lawyers by a new administration, which took issue with the policy calls of its predecessors.

The rest of the lengthy piece is mostly a rehash of the stories we have heard before — the White House vs. DOJ on terror policy and self-congratulation about the Obama team’s record on civil rights (well, for certain types of cases). But this sums up Holder’s central flaw fairly well and explains why, after replete evidence of his role in the pardon of Marc Rich and Puerto Rican terrorists, he never should have been confirmed:

Like any good political appointee, he was prepared to defend the policy whether he liked it or not. And in that case, maybe it didn’t matter what he supported; promoting the policy was supporting it. I was reminded of something one of his friends had told me, a former DOJ official who has known Holder since the beginning of his career: “Eric has this instinct to please. That’s his weakness. He doesn’t have to be told what to do — he’s willing to do whatever it takes. It’s his survival mechanism in Washington.”

But it makes for a rotten attorney general. And in the case of the Obama administration, it made for a top lawyer far too willing to accommodate the worst leftist impulses in the White House and in the increasingly politicized ranks of the Justice Department. Maybe Holder should start spending more time with his family.

Another entry in the Eric Holder “Can you believe this?” file comes with this report (h/t Main Justice):

In January, after a review by the Office of Professional Responsibility concluded that the authors of the torture memos had committed professional misconduct, Holder allowed the supervisor of that office, David Margolis, to overturn the committee’s conclusion and absolve the lawyers of wrongdoing. Sources close to Holder say that he was disappointed by Margolis’s decision and believed the finding of misconduct was correct — but was unwilling to overrule a nonpolitical employee on such a sensitive issue.

Disappointed? Indeed, he must have been, for the entire mission of DOJ in the first two years of the administration seems to have been defined by a “not Bush” or “get Bushies” mentality. Don’t let the civil rights laws be applied against Black defendants. Don’t follow the Office of Legal Counsel opinion on DC voting rights. Release detainee-abuse photos. Go after John Yoo and Jay Bybee. The problem, however, was that each of these highly politicized decisions was legally flawed and politically untenable even to those in the Department. After all, career attorneys at DOJ did not welcome the investigation of one set of lawyers by a new administration, which took issue with the policy calls of its predecessors.

The rest of the lengthy piece is mostly a rehash of the stories we have heard before — the White House vs. DOJ on terror policy and self-congratulation about the Obama team’s record on civil rights (well, for certain types of cases). But this sums up Holder’s central flaw fairly well and explains why, after replete evidence of his role in the pardon of Marc Rich and Puerto Rican terrorists, he never should have been confirmed:

Like any good political appointee, he was prepared to defend the policy whether he liked it or not. And in that case, maybe it didn’t matter what he supported; promoting the policy was supporting it. I was reminded of something one of his friends had told me, a former DOJ official who has known Holder since the beginning of his career: “Eric has this instinct to please. That’s his weakness. He doesn’t have to be told what to do — he’s willing to do whatever it takes. It’s his survival mechanism in Washington.”

But it makes for a rotten attorney general. And in the case of the Obama administration, it made for a top lawyer far too willing to accommodate the worst leftist impulses in the White House and in the increasingly politicized ranks of the Justice Department. Maybe Holder should start spending more time with his family.

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Hiding Facts in a Scandal Never Works

Since the Obama team pulled the plug on the voter-intimidation case against the New Black Panther Party, the administration has tried to keep the facts under wraps and the relevant documents and witnesses from surfacing. But this never works in Washington. In these sorts of scandals, the facts will still come out one way or another.

The new Congress with GOP chairmen will have the power to subpoena witnesses and documents and then take the administration to federal court if its stonewalling continues. Judicial Watch is already in federal court challenging the administration’s withholding of documents from Thomas Perrelli, the associate attorney general. Then there are Justice Department attorneys who fear they may be caught in the scandal — because they complied with Obama appointees’ directions to withhold documents improperly, provided misleading answers to discovery requests, or aided in obstructing investigations. Now they may very well decide to assist investigators in an effort to distance themselves from the wrongdoers. There are many witnesses to the meetings, e-mails, documents, and discussions described by  Chris Coates and J. Christian Adams. It’s inconceivable all of them will remain silent.

The Justice Department’s inspector general, Glenn Fine, is, or should be, another source of concern for the administration. When Reps. Frank Wolf and Lamar Smith were struggling in 2009 to get facts about the dismissal of the New Black Panther case, they wrote to Fine to implore him to open an investigation. Now, for many years, Fine has pushed for greater statutory authority to act as DOJ’s centralized watchdog, which in essence would overshadow the Office of Professional Responsibility (whose reputation has been poor and only deteriorated when its work on the John Yoo and Jay Bybee investigation was repudiated). In 2009, Fine said he lacked the authority to pursue the matter. But that was when the Obama team was riding high and ample evidence of systemic wrongdoing hadn’t been confirmed. In September 2010, both Obama’s political standing and the state of the evidence have changed.

Sure enough, Fine recently informed Wolf and Smith that he’s now undertaking that investigation. The New Black Panther Party scandal might finally give Fine the visibility and respect he has long sought. And it sure won’t harm his reputation with the new Congress.

Since the Obama team pulled the plug on the voter-intimidation case against the New Black Panther Party, the administration has tried to keep the facts under wraps and the relevant documents and witnesses from surfacing. But this never works in Washington. In these sorts of scandals, the facts will still come out one way or another.

The new Congress with GOP chairmen will have the power to subpoena witnesses and documents and then take the administration to federal court if its stonewalling continues. Judicial Watch is already in federal court challenging the administration’s withholding of documents from Thomas Perrelli, the associate attorney general. Then there are Justice Department attorneys who fear they may be caught in the scandal — because they complied with Obama appointees’ directions to withhold documents improperly, provided misleading answers to discovery requests, or aided in obstructing investigations. Now they may very well decide to assist investigators in an effort to distance themselves from the wrongdoers. There are many witnesses to the meetings, e-mails, documents, and discussions described by  Chris Coates and J. Christian Adams. It’s inconceivable all of them will remain silent.

The Justice Department’s inspector general, Glenn Fine, is, or should be, another source of concern for the administration. When Reps. Frank Wolf and Lamar Smith were struggling in 2009 to get facts about the dismissal of the New Black Panther case, they wrote to Fine to implore him to open an investigation. Now, for many years, Fine has pushed for greater statutory authority to act as DOJ’s centralized watchdog, which in essence would overshadow the Office of Professional Responsibility (whose reputation has been poor and only deteriorated when its work on the John Yoo and Jay Bybee investigation was repudiated). In 2009, Fine said he lacked the authority to pursue the matter. But that was when the Obama team was riding high and ample evidence of systemic wrongdoing hadn’t been confirmed. In September 2010, both Obama’s political standing and the state of the evidence have changed.

Sure enough, Fine recently informed Wolf and Smith that he’s now undertaking that investigation. The New Black Panther Party scandal might finally give Fine the visibility and respect he has long sought. And it sure won’t harm his reputation with the new Congress.

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Yoo Gets the Last Word

John Yoo is entitled to dance a jig on the grave of Eric Holder’s credibility. And he does. He sums up the ludicrous witch hunt conducted by the Office of Professional Responsibility, which examined whether he and Jay Bybee violated their ethical obligations in providing legal advice on enhanced interrogation techniques:

Rank bias and sheer incompetence infused OPR’s investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR’s preferred outcome. They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States. OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president’s commander-in-chief power. They accused us of violating ethical standards without ever defining them. They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence, even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

OPR’s investigation was so biased, so flawed, and so beneath the Justice Department’s own standards that last week the department’s ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

But who is ultimately responsible for this three-ring circus? The attorney general, of course. “Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do.” Yoo then describes the efforts of outgoing Attorney General Michael Mukasey and his deputy Mark Filip to critique the OPR’s sloppy work and end the investigation before they left office. But OPR “decided to run out the clock and push the investigation into the lap of the Obama administration.” And Holder let the investigation churn on and on until it was apparent that its work could not be defended and that the Justice Department risked humiliation were it to follow OPR’s error-ridden recommendation. Finally, David Margolis was brought in to clean up the mess, reverse the recommendations of OPR, and do what Holder could have done on his first day on the job: end the entire inquiry.

Yoo makes a key point: this is not simply about the persecution of two fine lawyers. It’s not even about the untold damage done to the Justice Department, which may find it difficult to find top-flight attorneys willing to stake their careers and savings by rolling the dice that some future administration won’t second-guess and investigate them. No, as Yoo points out, it’s about stopping the Justice Department from actively interfering with the serious business of the fighting a war against Islamic terrorists. (“Ending the Justice Department’s ethics witch hunt not only brought an unjust persecution to an end, but it protects the president’s constitutional ability to fight the enemies that threaten our nation today.”)

Now Holder needs to end the equally spurious reinvestigation of CIA agents who utilized enhanced interrogation methods and whom career prosecutors had previously declined to prosecute. And then he might reconsider whether Mirandizing terrorists and giving jihadists public trials are really helping us win a war. Or is it “criminal warlike activities“? That’s the problem, all right. And if Holder can’t give up the pipe dream of running a war from the ACLU handbook and conducting witch hunts to please the MoveOn.org crowd, Obama should find an attorney general who will.

John Yoo is entitled to dance a jig on the grave of Eric Holder’s credibility. And he does. He sums up the ludicrous witch hunt conducted by the Office of Professional Responsibility, which examined whether he and Jay Bybee violated their ethical obligations in providing legal advice on enhanced interrogation techniques:

Rank bias and sheer incompetence infused OPR’s investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR’s preferred outcome. They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States. OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president’s commander-in-chief power. They accused us of violating ethical standards without ever defining them. They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence, even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

OPR’s investigation was so biased, so flawed, and so beneath the Justice Department’s own standards that last week the department’s ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

But who is ultimately responsible for this three-ring circus? The attorney general, of course. “Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do.” Yoo then describes the efforts of outgoing Attorney General Michael Mukasey and his deputy Mark Filip to critique the OPR’s sloppy work and end the investigation before they left office. But OPR “decided to run out the clock and push the investigation into the lap of the Obama administration.” And Holder let the investigation churn on and on until it was apparent that its work could not be defended and that the Justice Department risked humiliation were it to follow OPR’s error-ridden recommendation. Finally, David Margolis was brought in to clean up the mess, reverse the recommendations of OPR, and do what Holder could have done on his first day on the job: end the entire inquiry.

Yoo makes a key point: this is not simply about the persecution of two fine lawyers. It’s not even about the untold damage done to the Justice Department, which may find it difficult to find top-flight attorneys willing to stake their careers and savings by rolling the dice that some future administration won’t second-guess and investigate them. No, as Yoo points out, it’s about stopping the Justice Department from actively interfering with the serious business of the fighting a war against Islamic terrorists. (“Ending the Justice Department’s ethics witch hunt not only brought an unjust persecution to an end, but it protects the president’s constitutional ability to fight the enemies that threaten our nation today.”)

Now Holder needs to end the equally spurious reinvestigation of CIA agents who utilized enhanced interrogation methods and whom career prosecutors had previously declined to prosecute. And then he might reconsider whether Mirandizing terrorists and giving jihadists public trials are really helping us win a war. Or is it “criminal warlike activities“? That’s the problem, all right. And if Holder can’t give up the pipe dream of running a war from the ACLU handbook and conducting witch hunts to please the MoveOn.org crowd, Obama should find an attorney general who will.

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Yoo and Bybee Cleared, Justice Department’s Shoddy Investigation Exposed

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding. In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.

Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings “do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)

Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be “exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down. Read More

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding. In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.

Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings “do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)

Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be “exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down.

UPDATE: Yoo’s attorney has released a statement. It concludes: “OPR’s work in this matter was shoddy and biased. The only thing that warrants an ethical investigation out of this entire sorry business is the number of malicious allegations against Professor Yoo and Judge Bybee that leaked out of the Department during the last year. It is high time for Attorney General Holder to show that these leaks were not authorized or encouraged — for base partisan purposes — at the highest levels of his department. Mr. Holder can do so by identifying the culprits and referring them for prosecution or bar discipline, as appropriate.”

UPDATE II: Bybee’s attorney has released a statement as well: “After an investigation spanning more than five years, the U.S. Department of Justice has concluded that Judge Jay S. Bybee acted in good faith and did not engage in ethical or professional misconduct during his service in the Department’s Office of Legal Counsel.” The Department has also determined that the matter does not warrant further proceedings or referral to the District of Columbia Bar. Maureen E. Mahoney, Judge Bybee’s attorney, stated that “The Department correctly rejected all claims of ethical or professional misconduct by Judge Bybee. While this vindication was many years in the making, we are pleased that the matter has now been resolved in his favor. No public servant should have to endure the type of relentless, misinformed attacks that have been directed at Judge Bybee. We can only hope that the Department’s decision will establish once and for all that dedicated public officials may have honest disagreements on difficult matters of legal judgment without violating ethical standards.”

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New Black Panther Case Investigator Getting a Lifetime Judgeship?

This report would ordinarily not be of much interest:

The White House and the Justice Department are vetting the head of the Office of Professional Responsibility, Mary Patrice Brown, for a federal judgeship, according to two people familiar with the matter.

Brown, a well-regarded career prosecutor, is expected to secure a nomination to the U.S. District Court for the District of Columbia, assuming she clears her FBI background check and American Bar Association review, the people said.

But OPR is now handling, with no deliberate speed and no transparency, the internal investigation of the dismissal of the New Black Panther Party case. (Really, is it possible that after months of investigation, not a single member of the trial team has been interviewed by OPR?)

And do we think Brown is acting with full independence and a devil-may-care attitude as to where the facts may lead? Or is she, now that a lifetime appointment to the court is pending, treading ever so carefully and slooowly? Well, one thing is certain: if she is nominated for a federal courtship, senators can finally quiz her on what political interference by Obami appointees in the work of career prosecutors may have been uncovered and why the OPR is slow-walking its way through an internal investigation that remains hidden from all outside scrutiny. That should make for an interesting confirmation hearing.

This report would ordinarily not be of much interest:

The White House and the Justice Department are vetting the head of the Office of Professional Responsibility, Mary Patrice Brown, for a federal judgeship, according to two people familiar with the matter.

Brown, a well-regarded career prosecutor, is expected to secure a nomination to the U.S. District Court for the District of Columbia, assuming she clears her FBI background check and American Bar Association review, the people said.

But OPR is now handling, with no deliberate speed and no transparency, the internal investigation of the dismissal of the New Black Panther Party case. (Really, is it possible that after months of investigation, not a single member of the trial team has been interviewed by OPR?)

And do we think Brown is acting with full independence and a devil-may-care attitude as to where the facts may lead? Or is she, now that a lifetime appointment to the court is pending, treading ever so carefully and slooowly? Well, one thing is certain: if she is nominated for a federal courtship, senators can finally quiz her on what political interference by Obami appointees in the work of career prosecutors may have been uncovered and why the OPR is slow-walking its way through an internal investigation that remains hidden from all outside scrutiny. That should make for an interesting confirmation hearing.

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The New Black Panther Stonewall Continues

It has been months since the Eric Holder Justice Department agreed to begin an internal investigation by the Office of Professional Responsibility into the dismissal of the New Black Panther Party voter intimidation case. Rep. Frank Wolf has continued to bird dog Holder and Justice, inquiring about the status of the investigation and whether they will share the results. He’s been rebuffed at every turn and the U.S. Commission on Civil Rights has likewise gotten the back of the hand, a flurry of specious privileges and objections to the Commission’s request for documents and information.

On January 26, Wolf took another stab, writing to the Inspector General of Justice Glenn Fine about the status and requesting that the IG take over the investigation. Wolf expressed doubts as to whether OPR was “capable of conducting an unbiased and independent review.” On February 2, Fine responded, revealing an ongoing power struggle within Justice and a peek at what OPR is up to. Fine notes that he has long been seeking statutory authority to allow the IG to investigate all matters within Justice as do other departments’ IG’s. He explains that Congress has not responded to his pleas and that the jusrisdiction over allegations of attorney misconduct remains with OPR. (As an aside, many conservatives opposed consolidating all internal invetigatory power within the IG’s office, concerned that this organization had its own biases and would become a rogue entity within the department.)

But Fine also says that he’s checked with OPR and, by gosh, they really are looking into the New Black Panther Party case. He tells Wolf they have “gathered documents and other relevant materials” and have interviewed witnesses, with more on tap. (This conflicts with other reports that Capitol Hill sources and I have received, according to which the voting-section trial team in the voter-intimidation case has not been thoroughly debriefed on the political interference with the case from Obama officials.) Fine assures Wolf that OPR will report back to Congress.

However, there is another avenue for extracting information about the case. The U.S. Commission on Civil Rights is holding its first hearing on the matter next week in Washington on February 12. We may finally get some details on the case. What we won’t have — at least yet — is the cooperation of the Justice Department. Holder continues to stonewall, keeping OPR busy churning paperwork but never seemingly able to reach an end to the investigation. It is yet one more example of the consequences of one-party rule and the absence of significant Congressional oversight. Wolf, to his credit, is writing letters; but the power to hold Congressional hearings and to demand documents remains with the Democratic majority. They, of course, have no interest in getting to the bottom of this. Let’s see if the Commission has any better luck.

It has been months since the Eric Holder Justice Department agreed to begin an internal investigation by the Office of Professional Responsibility into the dismissal of the New Black Panther Party voter intimidation case. Rep. Frank Wolf has continued to bird dog Holder and Justice, inquiring about the status of the investigation and whether they will share the results. He’s been rebuffed at every turn and the U.S. Commission on Civil Rights has likewise gotten the back of the hand, a flurry of specious privileges and objections to the Commission’s request for documents and information.

On January 26, Wolf took another stab, writing to the Inspector General of Justice Glenn Fine about the status and requesting that the IG take over the investigation. Wolf expressed doubts as to whether OPR was “capable of conducting an unbiased and independent review.” On February 2, Fine responded, revealing an ongoing power struggle within Justice and a peek at what OPR is up to. Fine notes that he has long been seeking statutory authority to allow the IG to investigate all matters within Justice as do other departments’ IG’s. He explains that Congress has not responded to his pleas and that the jusrisdiction over allegations of attorney misconduct remains with OPR. (As an aside, many conservatives opposed consolidating all internal invetigatory power within the IG’s office, concerned that this organization had its own biases and would become a rogue entity within the department.)

But Fine also says that he’s checked with OPR and, by gosh, they really are looking into the New Black Panther Party case. He tells Wolf they have “gathered documents and other relevant materials” and have interviewed witnesses, with more on tap. (This conflicts with other reports that Capitol Hill sources and I have received, according to which the voting-section trial team in the voter-intimidation case has not been thoroughly debriefed on the political interference with the case from Obama officials.) Fine assures Wolf that OPR will report back to Congress.

However, there is another avenue for extracting information about the case. The U.S. Commission on Civil Rights is holding its first hearing on the matter next week in Washington on February 12. We may finally get some details on the case. What we won’t have — at least yet — is the cooperation of the Justice Department. Holder continues to stonewall, keeping OPR busy churning paperwork but never seemingly able to reach an end to the investigation. It is yet one more example of the consequences of one-party rule and the absence of significant Congressional oversight. Wolf, to his credit, is writing letters; but the power to hold Congressional hearings and to demand documents remains with the Democratic majority. They, of course, have no interest in getting to the bottom of this. Let’s see if the Commission has any better luck.

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Wolf Turns Up the Heat on Black Panther Case

Rep. Frank Wolf turned up the heat on the Justice Department yesterday, introducing a Resolution of Inquiry that recounts the degree to which the Justice Department has stonewalled on efforts to find out why a serious case of voter intimidation was dismissed. Wolf wants the attorney general to hand over to the House all information relating to the dismissal of the case United States v. New Black Panther Party, the egregious voter-intimidation case that was captured on videotape. Wolf ‘s resolution explains:

This case was inexplicably dismissed earlier this year — over the ardent objections of the career attorneys overseeing the case as well as the department’s own appeal office.  I regret that Congress must resort to oversight resolutions as a means to receive information about the dismissal of this case, but the Congress and the American people have a right to know why this case was not prosecuted.

As ranking Republican member of the House Commerce-Justice-Science Appropriations Subcommittee that funds the Justice Department, I take oversight of the department very seriously. … Time and again over the last year, the department has stonewalled any effort to learn about the decision to dismiss this case. I have written Attorney General Holder on six occasions asking for an explanation for the dismissal of this case. To date, I have received no response from him.

Wolf recounts his efforts to get answers — from the DOJ inspector general, who passed the buck, to the Office of Professional Responsibility, supervised by the attorney general. He notes that he has written to OPR, but the office not only refused to share information but also provided an incomplete and inaccurate response from a legislative-affairs staff member. He also chides the inadequate congressional oversight of House Judiciary Chairman John Conyers and notes that the U.S. Commission on Civil Rights, also rebuffed, has been forced to resort to issuing subpoenas. Confirming press accounts, Wolf asserts that “the attorney general has instructed his department to ignore these subpoenas,” giving his employees the choice between obeying the law and complying with the attorney general’s obstruction, regardless of his standing as the nation’s chief law enforcer.

Wolf implores the House not to turn a “blind eye” to the attorney general’s obstruction. He also urges the attorney general to answer the commission’s inquiries. The resolution must be voted on by the Judiciary Committee and will likely be defeated in a party-line vote. But the issue is slowly and surely getting some visibility.

Perhaps more important, Wolf inserted in the appropriation bill for the Justice Department language that directs Justice to report back on the findings of the inquiry by the Office of Professional Responsibility and to advise Congress of its ensuing recommendations for action.

It seems as though the Obami’s plan to conceal the Black Panther case under the radar screen is being thwarted. As one Capitol Hill source told me of the Obama Justice Department, “They will HATE this … there is no dodging this now.” At the very least, we may find out why Obama political appointees subverted the efforts of career attorneys.

Rep. Frank Wolf turned up the heat on the Justice Department yesterday, introducing a Resolution of Inquiry that recounts the degree to which the Justice Department has stonewalled on efforts to find out why a serious case of voter intimidation was dismissed. Wolf wants the attorney general to hand over to the House all information relating to the dismissal of the case United States v. New Black Panther Party, the egregious voter-intimidation case that was captured on videotape. Wolf ‘s resolution explains:

This case was inexplicably dismissed earlier this year — over the ardent objections of the career attorneys overseeing the case as well as the department’s own appeal office.  I regret that Congress must resort to oversight resolutions as a means to receive information about the dismissal of this case, but the Congress and the American people have a right to know why this case was not prosecuted.

As ranking Republican member of the House Commerce-Justice-Science Appropriations Subcommittee that funds the Justice Department, I take oversight of the department very seriously. … Time and again over the last year, the department has stonewalled any effort to learn about the decision to dismiss this case. I have written Attorney General Holder on six occasions asking for an explanation for the dismissal of this case. To date, I have received no response from him.

Wolf recounts his efforts to get answers — from the DOJ inspector general, who passed the buck, to the Office of Professional Responsibility, supervised by the attorney general. He notes that he has written to OPR, but the office not only refused to share information but also provided an incomplete and inaccurate response from a legislative-affairs staff member. He also chides the inadequate congressional oversight of House Judiciary Chairman John Conyers and notes that the U.S. Commission on Civil Rights, also rebuffed, has been forced to resort to issuing subpoenas. Confirming press accounts, Wolf asserts that “the attorney general has instructed his department to ignore these subpoenas,” giving his employees the choice between obeying the law and complying with the attorney general’s obstruction, regardless of his standing as the nation’s chief law enforcer.

Wolf implores the House not to turn a “blind eye” to the attorney general’s obstruction. He also urges the attorney general to answer the commission’s inquiries. The resolution must be voted on by the Judiciary Committee and will likely be defeated in a party-line vote. But the issue is slowly and surely getting some visibility.

Perhaps more important, Wolf inserted in the appropriation bill for the Justice Department language that directs Justice to report back on the findings of the inquiry by the Office of Professional Responsibility and to advise Congress of its ensuing recommendations for action.

It seems as though the Obami’s plan to conceal the Black Panther case under the radar screen is being thwarted. As one Capitol Hill source told me of the Obama Justice Department, “They will HATE this … there is no dodging this now.” At the very least, we may find out why Obama political appointees subverted the efforts of career attorneys.

Read Less

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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We May Learn Something, Finally

Deputy Attorney General David W. Ogden stepped down from the No. 2 spot at the Justice Department. The reason, we are told, is that he really didn’t get along with the attorney general, the career lawyers, or the political appointees. And the White House didn’t care for him. Well, sometimes things just don’t work out.

But that means we’ll have a confirmation hearing for the position responsible for a great many things in the Justice Department, including criminal matters and “federal programs” (Guantanamo). A high-profile confirmation hearing provides the Senate with the opportunity to get some answers out of a very tight-lipped Justice Department.

For starters, what’s become of the internal investigation by the Office of Professional Responsibility over the dismissal of the New Black Panthers voter-intimidation case? This week, Congressmen Frank Wolf and Lamar Smith penned a letter to Holder that read in part:

We remain concerned that the Justice Department is prolonging OPR’s investigation as a pretense to ignore inquiries from Congress and the U.S. Commission on Civil Rights into the sudden and unexplained dismissal of voter intimidation charges against the New Black Panther Party. Any written report by OPR will be prepared exclusively for the Attorney General and Deputy Attorney General, with no guarantee that it will ever be made public.

After five months of unanswered questions, the American people can tell a cover up when they see one. If the Justice Department had any credible reason for dropping these charges, what do they have to hide by providing those answers to Congress?

Perhaps if the confirmation of DOJ’s No. 2 is at issue, Holder will cough up some answers. And by the way, why was the case dismissed?

Then there’s the decision to give KSM a civilian trial. It seems that other than the lefty lawyer brigade at DOJ, Holder didn’t consult with anyone but his wife and brother, not even the New York City Police Department or the Department of Homeland Security. What process does Justice go through? Was the White House really never consulted? Which lawyers were involved, and what consideration was given to the release of national-security data? A key confirmation hearing is the time to get some information. I’m sure the most transparent administration in history will be willing to share all.

There has been precious little oversight of the Holder Justice Department by the Democratic Congress. Now senators will have their opportunity to ask some hard questions. It is, as they say, a teachable moment.

Deputy Attorney General David W. Ogden stepped down from the No. 2 spot at the Justice Department. The reason, we are told, is that he really didn’t get along with the attorney general, the career lawyers, or the political appointees. And the White House didn’t care for him. Well, sometimes things just don’t work out.

But that means we’ll have a confirmation hearing for the position responsible for a great many things in the Justice Department, including criminal matters and “federal programs” (Guantanamo). A high-profile confirmation hearing provides the Senate with the opportunity to get some answers out of a very tight-lipped Justice Department.

For starters, what’s become of the internal investigation by the Office of Professional Responsibility over the dismissal of the New Black Panthers voter-intimidation case? This week, Congressmen Frank Wolf and Lamar Smith penned a letter to Holder that read in part:

We remain concerned that the Justice Department is prolonging OPR’s investigation as a pretense to ignore inquiries from Congress and the U.S. Commission on Civil Rights into the sudden and unexplained dismissal of voter intimidation charges against the New Black Panther Party. Any written report by OPR will be prepared exclusively for the Attorney General and Deputy Attorney General, with no guarantee that it will ever be made public.

After five months of unanswered questions, the American people can tell a cover up when they see one. If the Justice Department had any credible reason for dropping these charges, what do they have to hide by providing those answers to Congress?

Perhaps if the confirmation of DOJ’s No. 2 is at issue, Holder will cough up some answers. And by the way, why was the case dismissed?

Then there’s the decision to give KSM a civilian trial. It seems that other than the lefty lawyer brigade at DOJ, Holder didn’t consult with anyone but his wife and brother, not even the New York City Police Department or the Department of Homeland Security. What process does Justice go through? Was the White House really never consulted? Which lawyers were involved, and what consideration was given to the release of national-security data? A key confirmation hearing is the time to get some information. I’m sure the most transparent administration in history will be willing to share all.

There has been precious little oversight of the Holder Justice Department by the Democratic Congress. Now senators will have their opportunity to ask some hard questions. It is, as they say, a teachable moment.

Read Less




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