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Topic: Todd Gaziano

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: The New Black Panther Stonewall Continues

Commissioner Todd Gaziano of  the U.S. Commission on Civil Rights tells us about the witness line-up for the February 12 hearing:

There are three fact witnesses who will testify at the hearing scheduled for February 12, 2010: Mike Mauro, Chris Hill, and Bartle Bull. Each of these individuals was a poll watcher affiliated with either the Republican Party or the McCain campaign.

Both Mr. Hill and Mr. Bull were interviewed by reporters. Their comments are reflected in the video excerpts provided. Mr. Mauro is also seen in the videos, but does not make any comments and was not interviewed. He is the young gentleman in the blue jacket seen off to the side in several of the videos taken at the property.

All of these witnesses will describe the actions and comments of members of the New Black Panther Party, as well as conservations they may have had with poll workers inside the voting facility.

In addition, the Commission will hear from Gregory Katsas, a former Department of Justice official. . .

Finally, Congressman Frank Wolf will be appearing before the Commission to discuss his concerns and efforts relating to this matter.

I am also informed that subpoenas for Justice Department witnesses are outstanding. It is unclear (but I would suggest unlikely) that they will show up. As for Katsas, he will be testifying, among other things, concerning the standard Justice Department policy in handling cases of voter intimidation, whether given the facts of this case the Obama team was justified in pulling the case before a default judgment could be entered, and whether the associate attorney general (in this case, Thomas Perrelli, who has been identified in press reports as a decision-maker in the dismissal of the voter intimidation case) would be involved in a decision like this. He will also provide some insight into the sort of communication that would normally take place between the White House and Justice Department in the dismissal of a high-profile issue such as the New Black Panther Party case.

His testimony should be enlightening on many levels. For starters, the Obami have persistently claimed that the Bush administration did not adequately enforce civil-rights laws and that they intend now to correct this delinquency. Katsas may shine new light on the differing perspectives of the two administration. Moreover, the Commission is obviously digging to uncover whether in fact “career lawyers” made the decision to dismiss the case, as the Obami have claimed, or whether the decision-makers were indeed political appointees. And then there is the key question: what did the White House know?

Well, let’s see what we find out. It is now clear, I think, why Eric Holder has been stonewalling the Commission on its discovery requests. There seems to be much to ferret out.

UPDATE: This report tells us that the leader of the New Black Panther Party, Malik Zulu Shabazz, failed to show up for his deposition this week scheduled by the U.S. Commission on Civil Rights. The deposition was intended to gather information in advance of the February 12 hearing. Sources tell me that the Department of Justice has been requested to enforce the subpoena on behalf of the Commission. No word on whether Justice will do so, but it is hard to fathom what excuse Holder could raise to prevent enforcement of a duly executed subpoena on a third party witness with direct involvement in a matter which is the subject of a Commission investigation.

Commissioner Todd Gaziano of  the U.S. Commission on Civil Rights tells us about the witness line-up for the February 12 hearing:

There are three fact witnesses who will testify at the hearing scheduled for February 12, 2010: Mike Mauro, Chris Hill, and Bartle Bull. Each of these individuals was a poll watcher affiliated with either the Republican Party or the McCain campaign.

Both Mr. Hill and Mr. Bull were interviewed by reporters. Their comments are reflected in the video excerpts provided. Mr. Mauro is also seen in the videos, but does not make any comments and was not interviewed. He is the young gentleman in the blue jacket seen off to the side in several of the videos taken at the property.

All of these witnesses will describe the actions and comments of members of the New Black Panther Party, as well as conservations they may have had with poll workers inside the voting facility.

In addition, the Commission will hear from Gregory Katsas, a former Department of Justice official. . .

Finally, Congressman Frank Wolf will be appearing before the Commission to discuss his concerns and efforts relating to this matter.

I am also informed that subpoenas for Justice Department witnesses are outstanding. It is unclear (but I would suggest unlikely) that they will show up. As for Katsas, he will be testifying, among other things, concerning the standard Justice Department policy in handling cases of voter intimidation, whether given the facts of this case the Obama team was justified in pulling the case before a default judgment could be entered, and whether the associate attorney general (in this case, Thomas Perrelli, who has been identified in press reports as a decision-maker in the dismissal of the voter intimidation case) would be involved in a decision like this. He will also provide some insight into the sort of communication that would normally take place between the White House and Justice Department in the dismissal of a high-profile issue such as the New Black Panther Party case.

His testimony should be enlightening on many levels. For starters, the Obami have persistently claimed that the Bush administration did not adequately enforce civil-rights laws and that they intend now to correct this delinquency. Katsas may shine new light on the differing perspectives of the two administration. Moreover, the Commission is obviously digging to uncover whether in fact “career lawyers” made the decision to dismiss the case, as the Obami have claimed, or whether the decision-makers were indeed political appointees. And then there is the key question: what did the White House know?

Well, let’s see what we find out. It is now clear, I think, why Eric Holder has been stonewalling the Commission on its discovery requests. There seems to be much to ferret out.

UPDATE: This report tells us that the leader of the New Black Panther Party, Malik Zulu Shabazz, failed to show up for his deposition this week scheduled by the U.S. Commission on Civil Rights. The deposition was intended to gather information in advance of the February 12 hearing. Sources tell me that the Department of Justice has been requested to enforce the subpoena on behalf of the Commission. No word on whether Justice will do so, but it is hard to fathom what excuse Holder could raise to prevent enforcement of a duly executed subpoena on a third party witness with direct involvement in a matter which is the subject of a Commission investigation.

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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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