Justice Department vs. Republicans

In the face of the Obama fundraising and media juggernaut, Republicans are worried about losing the presidential election.

They should be even more fearful, however, about being criminally prosecuted by the Justice Department for political speech and activity protected by the First Amendment — a clear effort by partisan career lawyers within the Civil Rights Division to help the Obama campaign.

How did we reach such a disturbing state of events? In 2002, Attorney General John Ashcroft directed the Justice Department to hold an annual training session for lawyers from Civil Rights as well as Assistant U.S. Attorneys and FBI agents. Its purpose was to educate these individuals regarding the requirements of both civil election laws — such as the Voting Rights Act that guarantee access to the polls — and the criminal election statutes that prohibit voter fraud and registration improprieties.

The recent 2008 conference, according to multiple sources, was a radical departure from prior events and quite disturbing. Unlike the past, all of the Civil Rights Division’s presentations were not made by lawyers from the Voting Section. Instead, some were also made by lawyers from the Criminal Section of Civil Rights. While most of the laws enforced by that Division are civil statutes, a small number provide for criminal prosecution for violations of the law that involve the threat or use of force.

The kind of routine violence, targeting civil rights workers in the 60s who were registering blacks to vote, is long gone. The Criminal Section has not pursued a criminal voting-related case in decades. Yet the presentations at this year’s conference show that the Criminal Section has been given the green light to use these same criminal statutes to harass and prosecute political activists (particularly Republicans) who are engaging in protected political activity, not violence or the threat of violence. No candidate for federal, state, or local office should take this unprecedented threat lightly. The entire apparatus of federal election law enforcement was assembled for this conference including every FBI agent and Assistant United States Attorney responsible for election-related matters.

The Criminal Section is headed by a former ACLU attorney, Mark Kappelhoff, who was actually hired by this Administration. So much for the claim that the Bush Administration only hired “conservatives” in the Civil Rights Division. In apparent violation of a memorandum from Attorney General Mukasey that directed employees to be “particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality and nonpartisanship,” Kappelhoff has contributed $2,000 to Obama — not exactly the hallmark of “neutrality and nonpartisanship.” But even worse was the presentation by one of his career lawyers, James Walsh, obviously made with Kappelhoff’s approval.

Walsh is a former Voting Section lawyer who transferred to the Criminal Section after working for Senator Ted Kennedy on a detail. Not surprisingly, Walsh is also a contributor to Obama, which is certainly on par with the almost $150,000 that DOJ lawyers and staff who live in Virginia, Maryland, and the District of Columbia have contributed to the Obama campaign, including John Bert Russ, the lawyer in the Voting Section who is responsible for the observer program that will send out hundreds of federal observers on election day.

Walsh made it clear that the Criminal Section intends to use the civil rights statutes to criminally prosecute anyone they consider to be engaging in voter “intimidation” or “oppression.” Now, that might sound like a reasonable idea until you realize that Walsh and Kappelhoff’s definition of “intimidation” and “oppression” goes far beyond what you and I would imagine. Walsh stated that because we have an African-American presidential candidate, there would be voter suppression — a baseless assumption that plays on left-wing stereotypes of America as a racist nation. Every single example of wrongdoing that Walsh and other presenters used in their presentations talked about Republicans: there was not a single example of any wrongdoing committed by any Democrats in the entire two-day conference.

One cited example of a “criminal” violation supposedly intended to “suppress” voting was sending mailers informing voters that you must be a citizen to vote, a requirement of state and federal law. One of the deputy chiefs, Mark Blumberg, told FBI agents and federal prosecutors that the individuals responsible for such a brochure should be brought before a federal grand jury to ask them if they belong to any “anti-immigrant” groups. Not surprisingly, this deputy chief also did a detail with Senator Kennedy.

There are so many things wrong with this abuse of our legal process I am not sure where to start.

The lawyers from the Criminal Section acknowledged that there are no federal criminal statutes that reach non-violent political activities, yet they are proposing to use those statutes to harass individuals engaged in perfectly legal behavior. For telling the absolute truth about citizenship being a requirement to vote, these lawyers want to drag individuals in front of a federal grand jury to ask questions about their political associations. As far as I know, being a member of a group that is against illegal immigration is not a violation of federal law (yet!), although it is perfectly clear that the partisan career lawyers at Justice think it should be.

Under this reasoning, anyone who says we should secure our borders, enforce our employment laws, and deport illegal aliens is engaging in criminal oppression and intimidation. Should anyone who has expressed his views on this subject, particularly in connection with an election, expect to be called in front of a federal grand jury to answer for his “crimes?” While the views espoused by Walsh, Blumberg, and Kappelhoff are well outside the mainstream, they are perfectly aligned with liberal groups who do not believe that voter registration applicants should have to answer questions about their citizenship, and who in fact make a point of not advising registrants of citizenship requirements.

Regrettably, what is going on here is no different than what has happened in the Civil Rights Division for decades. This part of Justice is the depository of the most left-wing career lawyers in the entire department, and for years they have run mostly unchecked by political appointees. These lawyers will do anything they can to help get Obama elected — even if it means harassing, investigating and criminally prosecuting Republicans who are engaged in perfectly legal political activity.

Unfortunately, there do not appear to be any political appointees left in the Division with the political fortitude to do anything to stop it. So Republicans involved in the election should make sure they have their defense lawyers ready to go as we get closer to November. The power and authority of the Justice Department and federal grand juries may come down on their heads with all of the force of a hurricane. Or, even better, folks in Congress who respect the Bill of Rights and the First Amendment should let Attorney General Mukasey know that the use of the criminal process for political ends and to chill political speech won’t be tolerated. He should also require any Justice employees like Kappelhoff, Walsh, and Russ who have contributed to Obama to recuse themselves completely from any involvement in any matter arising out of the election.

The author is an attorney who specializes in election law. The author has requested anonymity to avoid being targeted for prosecution by the Justice Department for exercising First Amendment rights.