Commentary Magazine


Topic: Thomas E. Perez

Obama Civil Rights Head Defends Black Panther Dismissal

On Friday, the much anticipated testimony of Civil Rights division head Thomas Perez before the U.S. Commission on Civil Rights was heard. As the Washington Times reported, Perez implicitly rebuked both the trial team that filed the case and the appellate section that endorsed the work of the trial team:

Assistant Attorney General Thomas E. Perez told the U.S. Commission on Civil Rights on Friday there was “insufficient evidence” to bring a civil complaint against members of the New Black Panther Party who disrupted a Philadelphia polling place in the 2008 general elections.

Mr. Perez, the only Justice Department official to testify publicly before the commission about the case, said that without sufficient proof that party members or the organization’s leader, Malik Zulu Shabazz, directed or controlled unlawful activities at the poll or made speeches to incite or produce lawless action, the complaint “would have likely failed” in court.

Perez declared that, of course, the Justice Department is committed to equal enforcement of the civil rights laws regardless of the race of the defendants. But one commissioner, independent Todd Gaziano, isn’t buying it:

I wanted to believe there were all sorts of wrongheaded but NOT racist reasons for the decision to dismiss the defendants. But there are several reasons for me to believe that a racist application of the voting rights laws might have been at play. There is some evidence that is already in the public domain. Examples of that are the fact that there apparently is a culture in the civil rights division where some senior section chiefs and other supervising attorneys have expressed the view and engaged in conduct supporting that view that they don’t believe the voting rights laws should ever be enforced against blacks and other minorities. Those reports have been in the press in the past year or so and it seems to me from Perez’ response that he has done nothing to investigate whether that culture or those caustic views really are held by some of his supervising attorneys.”

And: “There is other evidence. There is the absence of a satisfactory explanation for why they did dismiss the Black Panther suit. Reasonable people know that if there is a racist reason for something and a good reason for something, and the reason has been called into question, a decent law enforcement agency when called to explain would want to provide the reasonable explanation – and they still haven’t done that. Third, [former civil rights division Voting Section chief] Chris Coates’ farewell address suggests that there still are several people in the division who do not believe in a race neutral application of the voting rights laws. And it seemed from Perez’ responses to me today that he did nothing specific to investigate why Chris Coates believed that [about his former co-workers].

So what now? The Justice Department continues to stonewall, refusing to allow witnesses with direct knowledge of the decision-making process to testify and refusing to appoint a special prosecutor to litigate the issue of the commission’s subpoenas. It’s quite a performance by an administration that promised to insulate from politics the work of its career attorneys. Well, one possibility is that one or more members of the trial team will defy the orders of their superiors not to testify and come forward to defend their work and reveal the interference they encountered. Another is that if the House flips control, congressional oversight will finally be undertaken and the appropriate witnesses subpoenaed and required to testify. One senses that after Perez’s performance and his hear-no-evil-see-no-evil approach to widespread reports that his division does have a double standard for civil rights enforcement, conscientious career lawyers must be mulling their options.

On Friday, the much anticipated testimony of Civil Rights division head Thomas Perez before the U.S. Commission on Civil Rights was heard. As the Washington Times reported, Perez implicitly rebuked both the trial team that filed the case and the appellate section that endorsed the work of the trial team:

Assistant Attorney General Thomas E. Perez told the U.S. Commission on Civil Rights on Friday there was “insufficient evidence” to bring a civil complaint against members of the New Black Panther Party who disrupted a Philadelphia polling place in the 2008 general elections.

Mr. Perez, the only Justice Department official to testify publicly before the commission about the case, said that without sufficient proof that party members or the organization’s leader, Malik Zulu Shabazz, directed or controlled unlawful activities at the poll or made speeches to incite or produce lawless action, the complaint “would have likely failed” in court.

Perez declared that, of course, the Justice Department is committed to equal enforcement of the civil rights laws regardless of the race of the defendants. But one commissioner, independent Todd Gaziano, isn’t buying it:

I wanted to believe there were all sorts of wrongheaded but NOT racist reasons for the decision to dismiss the defendants. But there are several reasons for me to believe that a racist application of the voting rights laws might have been at play. There is some evidence that is already in the public domain. Examples of that are the fact that there apparently is a culture in the civil rights division where some senior section chiefs and other supervising attorneys have expressed the view and engaged in conduct supporting that view that they don’t believe the voting rights laws should ever be enforced against blacks and other minorities. Those reports have been in the press in the past year or so and it seems to me from Perez’ response that he has done nothing to investigate whether that culture or those caustic views really are held by some of his supervising attorneys.”

And: “There is other evidence. There is the absence of a satisfactory explanation for why they did dismiss the Black Panther suit. Reasonable people know that if there is a racist reason for something and a good reason for something, and the reason has been called into question, a decent law enforcement agency when called to explain would want to provide the reasonable explanation – and they still haven’t done that. Third, [former civil rights division Voting Section chief] Chris Coates’ farewell address suggests that there still are several people in the division who do not believe in a race neutral application of the voting rights laws. And it seemed from Perez’ responses to me today that he did nothing specific to investigate why Chris Coates believed that [about his former co-workers].

So what now? The Justice Department continues to stonewall, refusing to allow witnesses with direct knowledge of the decision-making process to testify and refusing to appoint a special prosecutor to litigate the issue of the commission’s subpoenas. It’s quite a performance by an administration that promised to insulate from politics the work of its career attorneys. Well, one possibility is that one or more members of the trial team will defy the orders of their superiors not to testify and come forward to defend their work and reveal the interference they encountered. Another is that if the House flips control, congressional oversight will finally be undertaken and the appropriate witnesses subpoenaed and required to testify. One senses that after Perez’s performance and his hear-no-evil-see-no-evil approach to widespread reports that his division does have a double standard for civil rights enforcement, conscientious career lawyers must be mulling their options.

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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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