by Hans A. von Spakovsky, pajamasmedia.com
WASHINGTON - On July 22, Rep. Lamar Smith (R-TX) sent a letter to President Obama demanding that he appoint a special counsel to look into the Justice Department’s handling of the case.
On July 28, Gerald Reynolds — chairman of the U.S. Commission on Civil Rights — sent Attorney General Eric Holder another letter once again demanding the testimony of Christopher Coates, who had been previously subpoenaed by the Commission. The former career chief of the Voting Section at the Civil Rights Division, Coates recommended that the lawsuit against the NBPP go forward.
Meanwhile, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) has exchanged letters with the Committee’s seven GOP members, who demanded that an investigation be opened.
On July 29, Leahy denied their request in a letter filled with factual and legal errors.
At the Civil Rights Commission, what has grated most throughout its investigation is Holder’s refusal to let Coates testify about what happened in the NBPP case. Holder has a clear conflict of interest here, yet the Commission must rely on the Justice Department to enforce its subpoenas and Holder has refused to appoint a special counsel.
Also galling is the Justice Department’s flimsy justification for its stonewalling: a vague claim of “deliberative process” privilege. As the Commission has correctly noted, such a claim is insufficient to override the Justice Department’s statutory duty to comply “fully” with all Commission requests for information, as outlined in 42 U.S.C. §1975b(e).
The only exception to this statutory mandate is if the president claims executive privilege, something Obama has specifically not done in relation to the NBPP case.
The Justice Department has even tried to justify its refusal to supply witnesses or other information by claiming that it “is constrained by the need to protect against disclosures … that otherwise would undermine its ability to carry out its mission.” This sweeping and specious assertion approaches bad faith. It attempts to create a privilege that would cover any and all policy-related work at the Justice Department.
There is no such privilege.
During the last administration, congressional Democrats demanded that the DOJ provide its career attorneys to testify before Congress on various cases, and claimed no privileges applied. Contrary to Holder’s claims, the Justice Department has often had personnel testify in investigations and hearings. As noted in the 2007 Congressional Research Service report, “Congressional Investigations of the Department of Justice, 1920-2007,” Congress has obtained “the testimony of line attorneys … and other subordinate agency employees … in the course of innumerable investigations of Department of Justice activities.”
One quite salient example involved former Voting Section chief John Tanner. In 2007, he testified over the Civil Rights Division’s approval of Georgia’s voter ID law. At the time, Democrats on the Committee were outraged at the approval, insisting that it violated the Voting Rights Act. Nowhere among their shrill assertions that the approval was a “political” decision by a “politicized” division was there mention of the fact that all lawsuits claiming the voter ID law violated the Voting Rights Act were dismissed in state and federal court.
The DOJ has also tried to deny it is stonewalling. It has provided the Commission with thousands of pages of documents, it says. But as the Commission noted in a March 30 letter, those documents contain little of substance. Rather, they “were overwhelmingly addressed to historical matters,” and none of the “records related to the issue of why the Department” dismissed the NBPP litigation. The letter concludes that the Department of Justice produced largely useless reams of paper as “more a matter of public relations” than a good-faith effort to provide real information about the case.
Despite the DOJ’s failure to present any credible justification for withholding relevant documents and subpoenaed witnesses, the Commission offered Holder a compromise on July 28. Without waiving its demand for information about the NBPP dismissal, the Commission offered to limit its initial questioning of Christopher Coates if Justice would produce him as a witness. The Commission offered to temporarily forgo questions about the NBBP case deliberations and instead ask about the DOJ policies that J. Christian Adams testified about: the directive from Julie Fernandes, the deputy assistant attorney general for civil rights, that no cases would be filed against black or other minority defendants and no cases would be filed to enforce Section 8 of the National Voter Registration Act.
Those are policy matters. No one could plausibly assert any type of deliberative privilege here. But I predict that Justice will not accept this offer — they are too afraid of what Coates would say under oath. If Coates confirmed that the Justice Department does not believe in race-neutral enforcement of the Voting Rights Act or that the Justice Department will not enforce part of the Motor Voter law that ensures the accuracy of voter registration lists prior to the November election, the consequences could be dramatic.
On July 23, the seven GOP members of the Senate Judiciary Committee sent a letter to Patrick Leahy demanding an oversight hearing of the Civil Rights Division. They want to investigate the dismissal of the NBPP case and the other allegations regarding Ms. Fernandes. As the letter notes, those allegations raise the question of whether the Civil Rights Division “is actively engaged in widespread politicization and possible corruption. This Committee has a duty to investigate such serious allegations that strike at the heart of the Department’s integrity.”
Sen. Leahy responded in a July 29 letter that ignores the sworn testimony of Adams, and simply parrots the left-wing talking points designed to downplay this case and spin it as a conservative political plot.
Leahy claims there is no need for a hearing because Sen. Jeff Sessions (R-AL) asked Assistant Attorney General for Civil Rights Thomas Perez about the NBPP case three months ago in an oversight hearing. Leahy sees “no credible basis to second guess the decision” to dismiss the case.
Of course, Leahy completely ignores the fact that the most damaging information about the Civil Rights Division has come to light since Perez testified before the Judiciary Committee. Perez appeared before J. Christian Adams told the Civil Rights Commission about Julie Fernandes and the Division’s pervasive and open hostility to enforcing civil rights laws in a race-neutral manner. Adams also testified that a minority employee was repeatedly harassed for working on another case where the defendant was black and the alleged victims were white and black voters, as well as the fact that attorneys in the Voting Section refused to work on the same case because the defendant was black.
In asserting that he has no “credible” reason to question the dismissal, Leahy also overlooks Adams’ testimony that Acting Deputy Assistant Attorney General Steven Rosenbaum admitted to Christopher Coates that he (Rosenbaum) had not even read the internal Justice Department memo recounting the relevant facts and law prior to making the decision to dismiss the NBPP case. Coates and Adams told Thomas Perez about this the day before Perez testified before the Civil Right Commission. Perez conveniently neglected to mention this in his testimony — an oversight that raises the issue of whether his testimony was intentionally misleading. And Leahy makes no mention of the fact that the Appellate Section also agreed with the trial team in the Voting Section that the Department should not dismiss the lawsuit.
It’s curious that Leahy doesn’t want to hear testimony from the career lawyers who actually investigated and worked on this case. Coates has litigated civil rights cases for almost 40 years. He won the second-highest award given by the Civil Rights Division for his “extraordinary skill, dedication and integrity in written and oral advocacy.” Why wouldn’t Leahy want to hear from this exemplary professional?
Instead, Leahy simply asserts that the allegations of politicization are “hard to credit” because the Division’s decision to seek civil penalties rather than criminal sanctions occurred during the Bush administration. Of course, this has absolutely no relevance to the decision to dismiss the civil charges.
As a practical matter, the Civil Rights Division files civil cases because a civil injunction is often the quickest and simplest way to make sure a violation of the Voting Rights Act does not happen again. It’s a particularly useful approach if elections are coming up soon. Had the Division obtained an injunction against all of the defendants — something it could have done easily in May 2009 when they all defaulted — it could then have proceeded with criminal charges. Before that, the Division was focused on the remedy best able to stop and prevent voter intimidation as quickly as possible.
Leahy’s letter concludes with a laughable line applauding Attorney General Holder’s effort “to remove the taint of partisan politics from law enforcement decisions at the Justice Department.” Friends still working at Justice, as well as former Justice Department lawyers — both career staff and political appointees — tell me that Eric Holder is the most political attorney general they have seen. Politics, they say, seems to drive almost all of his decision-making, not just in civil rights, but in the areas of national security and immigration enforcement, too.
Leahy obviously was not trying to make a joke, but that is what his claim amounts to. And his letter makes it clear that Democrats intend to do everything they can to keep the truth from coming out about the NBPP case and the administration of the Civil Rights Division at the Justice Department.
Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation (www.heritage.org) and a former career lawyer in the Civil Rights Division at the Justice Department.