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

“We made it clear we would be willing to consider accommodations regarding specific discovery requests, both as to timing and potentially as to content,” he told me.  “But the Department first needs to acknowledge our statutory right to investigate this enforcement matter and begin to fully cooperate as the law plainly requires.”  Other commissioners expressed the same sensitivity to potential conflicts with the DOJ but also indicated that they doubted that any real conflicts would arise between the Commission’s investigation and an internal OPR probe.

A proposal to designate the matter as one for a year-long study summarized the significance of the investigation and why the Justice Department must cooperate with the Commission. The proposal explained:

The dismissal of the federal government’s suit against most of the New Black Panther Party (NBPP) defendants, and the narrow injunction against the remaining defendant -- who stood outside a Philadelphia polling place, wearing a paramilitary uniform, brandishing a nightstick, and peppering certain voters with racially-offensive comments as they approached the polls -- has the potential to significantly change the understanding some officials have regarding the coverage and enforcement of § 11(b).  The USCCR voted on August 7 to expand its inquiry into DOJ’s actions and rationale in that case.  As is set forth in the Commission’s August 10 letter to Attorney General Holder, it is important to determine whether the Department has changed its interpretation of § 11(b) (which will require an examination of prior investigations), and if so, what effect that change is likely to have on its enforcement policy.  In turn, we should determine whether the policy change might increase intimidating conduct, whether we believe that conduct violates the VRA [Voting Rights Act] or not.

An examination of DOJ’s enforcement of § 11(b) should determine the facts in the NBPP case to place it within the proper context of prior enforcement actions and policies.  The Commission should then attempt to determine: (1) whether the rule of the NBPP case (whether it amounts to a new policy or not) would have led to different results in prior cases, and (2) whether it would render current examples of alleged intimidation outside the coverage of the VRA.

The proposal then sketched out a plan for investigation including a possible onsite hearing in Philadelphia to determine the underlying facts of the dismissed case. The plan also called for questioning of key Justice Department figures:

  • Thomas J. Perrelli, Associate Attorney General
  • Loretta King, Acting Assistant Attorney General for Civil Rights
  • Diana K. Flynn, Appellate Section Chief, Civil Division
  • Christopher Coates, Voting Rights Section Chief, Civil Rights Division

Perrelli, the number three man in Justice, was involved (according to the Washington Times) in the decision to dismiss the default judgment, despite prior repeated denials by the Justice Department that only career attorneys had made the call. King, as reported here and in the Weekly Standard, was the official who directly ordered the dismissal. Flynn’s group recommended that the case not be dismissed but was overridden. Coates, it is believed, was opposed to the dismissal as well and supported his career attorneys who filed the case.

The Commission on Friday voted unanimously by a 5-0 margin to pursue the year-long study and to set up a separate subcommittee to handle sensitive discovery issues. The Commission also agreed to send a letter replying to the Justice Department’s announced refusal to cooperate with the Commission’s investigation.

It seems that we are therefore headed for a clash between the administration, which has bragged about its transparency, and the Commission. It remains unclear whether the Justice Department will continue to stonewall as some fear or ask the president to invoke executive privilege to block the DOJ’s cooperation with the Commission’s investigation, thereby significantly impeding the only truly independent entity examining this issue.

Meanwhile, Republicans on Capitol Hill remain wary. Rep. Frank Wolf and Lamar Smith expressed relief that an investigation was finally underway. But given that the Justice Department controls the timing and contours of OPR’s inquiry, some Republicans are not willing to give up all leverage over Holder’s Justice Department.

To that end, a hold has been placed, it is believed by Sen. Tom Coburn, on the nomination of Civil Rights Division head Thomas Perez. In light of the proclivity of Holder’s Justice Department to be less than forthcoming with information and its track record to date in the New Black Panther case, it seems that savvy Republicans will not be anxious to lift that hold until there has been a full accounting of the New Black Panther case.

In sum, the heat is being turned up on the Justice Department but we can expect that every effort will be made to block and sidestep the Commission’s investigatory efforts. This will come as no surprise to conservatives who have seen (with, for example, the proliferation of unaccountable “czars” exempt from congressional confirmation) that this administration prefers to operate with a minimal amount of accountability and outside scrutiny.

And that is precisely what the Commission is threatening to bring. If it succeeds we may finally learn why Obama’s Justice Department walked away from a high-profile victory against the New Black Panthers.