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The PJ Tatler

by
Hans A. von Spakovsky

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July 30, 2012 - 2:16 pm

In a little noted decision on July 23, a federal district court judge concluded that internal DOJ documents about the New Black Panther Party voter intimidation case “contradict Assistant Attorney General [Thomas] Perez’s testimony that political leadership was not involved in” the decision to dismiss the case.

In other words, the sworn testimony of Perez, the Obama political appointee who heads the Civil Rights Division, before the U.S. Commission on Civil Rights was apparently false.

The decision in Judicial Watch v. U.S. Department of Justice by Judge Reggie Walton was in a case filed by Judicial Watch after the Civil Rights Division refused to turn over documents about the NBPP case requested under the Freedom of Information Act (FOIA). Walton is the same federal judge who presided over the prosecution of Scooter Libby, Vice President Dick Cheney’s former chief of staff.

As Judge Walton outlined, Judicial Watch’s FOIA request “sought documents relating to the DOJ’s decision to dismiss civil claims in the New Black Panther Party case.” Walton awarded Judicial Watch a small amount of attorneys’ fees and costs, having concluded that the Judicial Watch lawsuit “was the catalyst for the DOJ’s release of records.”

According to the court, the DOJ documents, including emails from former Associate Attorney General Thomas Perrelli (who was the number-two official at DOJ) and former Democratic election lawyer and Deputy Associate Attorney General Sam Hirsch, “revealed that political appointees within DOJ were conferring about the status and resolution of the New Black Panther Party case in the days preceding the DOJ’s dismissal of claims.”

This included emails from Perrelli to lower-level DOJ attorneys on May 14 and 15, 2009, the day before and the very day the case was dismissed against three of the defendants on May 15. As Judge Walton concluded in discussing the importance of the Judicial Watch lawsuit, “[s]urely the public has an interest in documents that cast doubt on the accuracy of government officials’ representations regarding the possible politicization of agency decisionmaking.”

Neither Perrelli nor Hirsch has ever answered any questions about why top officials in the Justice Department were so interested in one of the many cases handled by the Civil Rights Division or what actions or instructions they communicated. And they have never said who else they discussed the case with above them, either in the Office of the Attorney General or in the White House. We don’t know the actual content of many of these emails because the court upheld the exemption from disclosure claimed by DOJ for many of these documents under a FOIA rule that protects certain legally privileged documents.

But the court also said that DOJ had failed “to show that its withholding of some documents from Judicial Watch prior to the filing of this lawsuit was legally correct or had a reasonable basis in law.” That is no surprise. Far too many of the actions of this Justice Department, particularly the Civil Rights Division, have not been legally correct or had a reasonable basis in law. And in this case, DOJ tried to avoid releasing documents as mandated by FOIA that it found politically embarrassing since there was no justifiable legal reason for dismissing an open-and-shut case of voter intimidation that had already been won by default.

But what is most disturbing about this court order is that it strongly suggests that Assistant Attorney General Thomas Perez essentially lied in sworn testimony. At a hearing before the U.S. Commission on Civil Rights on May 14, 2010, Perez was asked by Commissioner Peter Kirsanow whether “any political leadership [was] involved in the decision not to pursue this particular case.” Perez’s answer, on page 79 of the transcript of that hearing, is an uncategorical “No.” When the statements of Perez are compared to the documents that Judicial Watch forced DOJ to release in the FOIA lawsuit, it is clear Judge Walton was polite when he said they are contradictory and “cast doubt on the accuracy” of Perez’s account.

A less diplomatic judge might have said that Perez testified falsely in his hearing testimony before the Commission on Civil Rights. In other words, he may have committed perjury if he knew his statements were false when uttered.

The Commission on Civil Rights repeatedly asked Attorney General Holder to appoint a special counsel to investigate the handling of the NPBB case by the Department and the refusal of Perez to comply with lawful documents requests and subpoenas served on DOJ by the Commission. When will the attorney general do so, and when will he ask for an investigation of this possible perjury by Perez?

Where is the investigation by the Justice Department’s Office of Professional Responsibility (OPR) of whether Perez violated his ethical and professional obligations as a DOJ attorney? Will the DOJ inspector general open an investigation of the possible violation by Perez of 18 U.S.C. §1621, which outlaws presenting false statements under oath in official federal proceedings? Or will they all respectively yawn and ignore this?

Imagine if a conservative political appointee at DOJ had just been cited in a federal court decision as having apparently testified falsely under oath. Not only would it be a top headline at The New York Times and The Washington Post, but the IG and OPR would be rushing to investigate. All of which is a sad commentary on the liberal bias not just of the media, but of too many of the offices and officials within the Justice Department who are supposed to administer justice in an objective, non-political, and impartial manner.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
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