Obama Administration Stonewalls U.S. Civil Rights Commission on Black Panther Case

Last month, the Obama administration’s decision to dismiss a default judgment against the New Black Panther Party in a clear case of voter intimidation (caught on videotape and circulated on the internet) drew scrutiny from Congress and from the U.S. Civil Rights Commission. That scrutiny has now resulted in one announced investigation by the Justice Department’s Office of Professional Responsibility (OPR) and set the stage for a battle between the administration and the Commission.

In June, the Commission sent a letter of inquiry to the Justice Department demanding an explanation for the dismissal of the case against all but one defendant. In August, the Commission sent a second letter directly to  Attorney General Eric Holder reiterating its demand for information on the reasons for the dismissal and advising Holder of its intention to use the Commission’s statutory authority to subpoena witnesses and documents. It also renewed its demand for records of past DOJ investigations so it could make an independent determination as to whether the New Black Panther case’s dismissal was an abrupt change in Justice Department policy, and if so, what the impact of that policy change might be on future acts of voter intimidation. However, the “most transparent administration” in history (it tells us) did not even acknowledge receipt of the letter for weeks.

Last week, the Commission’s General Counsel contacted the Justice Department to inquire if a response would be forthcoming and to advise the Justice Department that on Friday the Commission would meet to decide an issue left open at its meeting last month, namely whether to designate its already expanding investigation into the New Black Panther case as an issue for a year-long study and special report. (By statute the Commission must complete at least one such study and report each year on a matter of federal civil rights enforcement.) Later that day the Justice Department sent a one paragraph letter to the Commission advising that an OPR investigation would be opened and “accordingly” no answer would be forthcoming until OPR concluded its investigation.

A source familiar with the Commission’s deliberations tells Pajamas Media that a number of the commissioners were aghast by the response. An OPR investigation is, of course, no basis for declining to co-operate with the Commission in its statutorily authorized obligation to investigate enforcement of civil rights laws. Moreover, during the Bush administration many controversial issues were the subject of investigation and litigation on multiple “tracks” (e.g., the firing of nine U.S. attorneys triggered both congressional inquiries and an inspector general's report, investigations of embattled former Voting Rights Section chief Jack Tanner were conducted by both Congress and OPR).

Moreover, the Commission’s concerns, including whether the dismissal marks a deviation from past policy and whether the underlying case did concern a serious civil rights violation, are beyond the ordinary purview of OPR. OPR, in contrast to the Commission, will examine the narrower issue of whether politics or other improper considerations played any role in overriding the decision of the career attorneys who opposed the dismissal.

As one Commissioner described it, the DOJ’s excuse would be analogous to a corporation charged with employment discrimination which instituted an internal investigation -- and then claimed that a civil lawsuit couldn’t proceed until the corporation investigated itself.

The analogy is on target here given the fact that OPR is not an autonomous organization but reports up through the Justice Department chain of command to the attorney general. If in fact politics intervened at the behest or with the knowledge of the attorney general or his direct subordinates, then there is all the more reason for an independent entity such as the Commission to examine what occurred.

The commissioners met on Friday to debate the issue. Commissioner Todd Gaziano pointed out that the Commission’s independent examination of the fact witnesses and former defendants in Philadelphia as well as its request for the Department’s records of previous investigations could not possibly conflict with DOJ’s internal investigation of the New Black Panther case. Nevertheless, he acknowledged some potential concerns that might later arise with aspects of the Commission’s investigation and the Justice Department’s OPR investigation, and he offered that the Commission would be sensitive to the OPR interest in rooting out evidence of ethical misconduct by the Justice Department.