Commentary Magazine


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.

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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