As the scandal over the dismissal of the New Black Panther Party (NBPP) voter intimidation case percolates in the media, letters have been flying through the corridors of power.
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.