Dissenting with Paul Mirengoff: New Black Panther Case Should Not Have Been Dismissed

The ongoing investigation of the U.S. Commission on Civil Rights is no longer primarily about the dismissal of the voter-intimidation case against the New Black Panther Party. It’s about a much more important matter -- namely, the sworn testimony that an Obama political appointee instructed Voting Section lawyers that no cases would be brought against any black or other minority defendants no matter how egregious their violations of the law.

Moreover, that appointee, Julie Fernandes of the Civil Rights Division at the Department of Justice, is alleged to have instructed the lawyers not to enforce part of the National Voter Registration Act. So even if Paul Mirengoff’s conclusions about the merits of the case are correct, the Civil Rights Commission investigation is very important.

But I also, very reluctantly, have to challenge most of what Paul writes about the NBPP case.

I say “reluctantly” because I have the greatest respect for Paul Mirengoff. But his July 19 post about the NBPP, in which he says that the decision to dismiss the voter-intimidation case under Section 11(b) of the Voting Rights Act against all of the defendants except for the one who carried the weapon is “defensible,” is wrong for several reasons.

Paul is a good lawyer (you don’t get to be a partner at Akins Gump otherwise) but he suffers from three handicaps: (1) unlike me, he has never worked in the Civil Rights Division at Justice and is unfamiliar with the culture there and its method of doing business; (2) he doesn’t know the lawyers in the case (I know them all personally); and (3) he is not intimately familiar, as I am, with the evidence in both the NBPP case as well as the Ike Brown case. The Brown case that he discusses was filed by the Bush administration when I was still at Justice against black defendants in Mississippi for engaging in blatant racial discrimination against white voters. DOJ won that case in district court, and it was affirmed by the Fifth Circuit Court of Appeals.

Paul says it was reasonable for the Obama/Holder Justice Department to conclude that the case against the second NBPP member, Jerry Jackson, lacked sufficient evidentiary support because 1) Jackson didn’t have a weapon; 2) he was a certified poll watcher; and 3) the local police officer who arrived at the scene and investigated the matter concluded that, unlike Shabazz, Jackson’s actions didn’t warrant removal from the polling station. With all due respect to Paul, who is an employment discrimination lawyer, none of those factors are relevant to this voting-rights case, as I explain below.

It is also wrong to say that reasonable lawyers could differ in their opinions on this case after reviewing the facts for one very big reason: the lawyers who ordered the case dismissed -- Acting Assistant Attorney General Loretta King and Acting Deputy Assistant Attorney General Steve Rosenbaum -- did not review the facts before they ordered the dismissal.

Paul says that he read the internal DOJ memorandum on the case prepared by the Voting Section lawyers, including Christopher Coates and J. Christian Adams. But that is more than King and Rosenbaum did -- there is testimony in the record of the U.S. Commission on Civil Rights (confirmed by sources inside DOJ) that Rosenbaum admitted to Coates that he had not bothered to read that memorandum before ordering Coates to dismiss the case.

Coates got so angry that he actually threw the memorandum at Rosenbaum.

King and Rosenbaum’s lack of basic knowledge of the facts of the case has been evident from the outset. When the two of them went to Capitol Hill last summer to brief some Republican House members who had demanded a meeting on the case, they claimed that Jackson was dismissed because he lived in the building where the polling place was located and therefore had a right to be there. DOJ even made that same allegation in a letter dated July 13, 2009, to Rep. Lamar Smith.

It was untrue; Rosenbaum and King would have known as much if they had simply looked at even a single pleading in the case. The certificate of service on all of the pleadings showed Jackson’s home address.

In other words, King and Rosenbaum were unaware of the most basic facts about the case before they made the supposedly “reasonable” decision to dismiss it. The day before Assistant Attorney General for Civil Rights Thomas Perez testified before the Commission on Civil Rights that the Division’s dismissal merely reflected reasonable lawyers coming to a different opinion after reviewing the facts and the law, he had been specifically told by Coates and Adams about Rosenbaum’s admission. That certainly raised a serious question about the accuracy of Perez’s testimony under oath on this issue.