When I reported on September 19 that partisan career lawyers in the Civil Rights Division at the Department of Justice were planning on criminally targeting Republican political activists and candidates, this was treated with disbelief by some. In fact, Rick Hasen, a liberal law professor at Loyola who runs the popular Election Law Blog , a website concentrating on voting and election developments, expressed his skepticism “of such anonymous claims.”
Well, those claims have proven all too real to former Republican congressional candidate Tan Nguyen, who ran for office in the 47th Congressional District of California in 2006 against incumbent Loretta Sanchez. On October 1, the Civil Rights Division announced the indictment of Nguyen for obstruction of justice for supposedly making “misleading statements to investigators” regarding a letter that was sent to Latino voters during the election. This investigation and indictment represents a particularly egregious example of the government persecuting someone for engaging in perfectly legal behavior. Essentially, Nguyen is being prosecuted for having informed voters of the truth, although it is a truth disliked by the career lawyers in the Civil Rights Division.
The letter (in Spanish) that is the basis of the indictment was apparently sent out to Latino voters by the California Coalition for Immigration Reform (CCIR). It told voters that if they were a citizen of the United States, they should “participate in the democratic process of voting.” However, the letter warned voters that if they were residing in this country illegally, “voting in a federal election is a crime that could result in jail time” and for which they could be deported. The letter made clear that voting in any election “if you are not a citizen of the United States” would be “useless and dangerous.”
It is important to realize that everything said in this letter is absolutely true. There are a number of federal statutes that make it illegal for someone to falsely claim citizenship when registering to vote or to vote in federal elections if not a citizen. But informing voters that they have to be citizens to vote is highly offensive to the political left, especially organizations like La Raza or MALDEF, the Mexican American Legal Defense and Education Fund, and their allies in the career ranks of the Civil Rights Division.
As described in the September 19 article, lawyers in the Civil Rights Division said at an internal DOJ training session this summer that they considered sending mailers informing individuals of the citizenship requirement for voting an example of voter “suppression.” Although they acknowledged there was no federal criminal statute making this illegal, they proposed using federal grand juries to go after anyone who engaged in this type of behavior. They have now fulfilled that promise.
It is important to realize what has happened here. Not only was CCIR engaging in political speech fully protected by the First Amendment, but it was telling voters the absolute truth about federal statutes that prohibit noncitizens from registering and voting in federal elections and the possible consequences, including deportation. Yet the Civil Rights Division initiated an investigation of perfectly legal behavior, in fact First Amendment-protected political speech that could not even remotely be considered a violation of any federal voting rights law the Division is charged with enforcing.
Nguyen made a mistake in talking to investigators — he may have been embarrassed about his involvement or got scared when the FBI showed up at his door. But what is outrageous is that the FBI even showed up at his door to ask him questions about this letter. There was no perceptible violation of federal law. The only problem with it is that the political left would probably characterize it as “anti-immigrant.” The Department of Justice could not indict Nguyen or his surrogates for truthfully informing voters that you have to be a citizen to vote, so instead they indicted him for supposedly not telling the truth about his involvement in a completely legal action — sending this letter to voters. This is a classic example of the government going after someone because they do not agree with what he did and prosecuting him for supposedly lying about fully protected political speech.
And who is the lead career lawyer on the case? Why, James Walsh, an Obama donor who was the lawyer referred to in the September 19 article who was directing the training of DOJ lawyers and FBI agents on how to go after political activists. There would never have been an investigation to begin with if partisan lawyers like Walsh were not in the Criminal Section running criminal investigations based on the content of political speech.
No one should have any illusions either about why this indictment has occurred just prior to the November election. Partisans like Walsh and his immediate boss, Mark Kappelhoff, a former ACLU lawyer and $2,000 contributor to Obama, know that illegal voting by noncitizens, particularly illegal aliens, will be very important in many of the Southwestern states like Texas, New Mexico, and California to ensuring an Obama victory. They are making sure that no Republicans or immigration groups do anything to interfere with the ability of illegal aliens and legal residents to vote in the upcoming election. What is even more ironic about this situation — and a good example of the misplaced priorities of the Justice Department — is that Nguyen was running against Loretta Sanchez, who won her office in 1996 with the votes of hundreds of individuals who were not citizens, none of whom were ever prosecuted by the Justice Department despite the findings of the House committee that investigated the race.
Even more infuriating is that the political leadership of the Civil Rights Division has approved this prosecutorial abuse and chilling of First Amendment rights. And while it is true that the Hatch Act allows career employees to make political donations, the fact that the head of the Division does not understand the inherent conflict of interest in allowing Obama donors like Walsh and Kappelhoff to be involved in any election-related cases is stunning. It is surprising that Grace Becker, the acting assistant attorney general of the Division and President Bush’s nominee to become the assistant attorney general, has not been confirmed by the Democrats. Her complete lack of judgment as illustrated by this indictment would seem to make her the perfect head of the Division for the Democratic Party. If Obama wins, he could do no better than to renominate her to be his assistant attorney general.