- The Washington Times - Wednesday, December 16, 2009

The Justice Department has told the federal attorneys who filed a civil complaint against the New Black Panther Party for disrupting a Philadelphia polling place last year not to cooperate with an investigation of the incident by the U.S. Commission on Civil Rights.

The commission last week subpoenaed at least two Justice Department lawyers and sought documents from the department to explain why the complaint was dismissed just as a federal judge was about to punish the New Black Panther Party and three of its members for intimidating voters.

Joseph H. Hunt, director of the Justice Department’s Federal Programs Branch, ordered the lawyers’ silence in a letter to the attorney for J. Christian Adams, the lead attorney for the department in the New Black Panther case. The letter said “well-established” and “lawful” Justice Department guidelines prohibited Mr. Adams’ cooperation in the commission probe.

In the letter, Mr. Hunt said the Civil Rights Commission “possesses no authority to initiate criminal prosecution of anyone” and has the ability only to make referrals to the Justice Department recommending that a criminal case be opened. The commission does not have the authority to enforce subpoenas, he added.

Mr. Adams’ attorney, Jim Miles of Lexington, S.C., had asked the Justice Department whether his client would be subject to prosecution if he declined to respond to a commission subpoena. Mr. Miles wrote that he thought Mr. Adams had a “statutory obligation superior to that imposed by the Department of Justice” and that his refusal to cooperate might subject him to imprisonment or contempt charges.

In response, Mr. Hunt said, “There is no reasonable likelihood of imprisonment” for Mr. Adams because “the Department of Justice itself has instructed your client not to provide any information (either via testimony or documents) to the commission.”

Mr. Hunt said the Justice Department thinks that federal agencies should cooperate fully with the commission so it can carry out its duties. But he added that the department needed more time to determine what could be provided, given the extent of the commission’s request.

“We are, after all, dealing with information that belongs to the Department of Justice, not to any individual (current or former) departmental official or employee,” he said.

Mr. Hunt also said Mr. Adams would place himself in jeopardy “in a manner that would violate the lawful regulations by which he is obliged to abide” if he disregarded the department’s decision.

Mr. Miles, a former South Carolina secretary of state, told The Washington Times that he did not think the commission’s subpoena “would be subjugated to some internal procedural personnel rule” at the Justice Department.

Todd Gaziano, a nonpartisan member of the Civil Rights Commission, challenged the Justice Department’s ruling, saying that the regulations cited do not apply and that the commission is “duly authorized by statute to review and report on enforcement activities of the Justice Department and other similar agencies.”

“Our job places a premium on our role as a watchdog of federal and state enforcement agencies, and to that end, Congress has instructed all agencies to comply fully with our requests,” he said.

Mr. Gaziano, a former Justice Department lawyer who served in the Office of Legal Counsel during the Reagan, George H.W. Bush and Clinton administrations, said the Justice Department “had it exactly backwards” when it suggested that there could be negative consequences for those who comply with the commission’s subpoenas. He said a lawyer cannot refuse to comply with a subpoena he knows to be lawful.

He also said the commission’s investigation could include public hearings in Washington and Philadelphia. The commission wants to know whether the decision to drop the charges constituted a departure from prior enforcement policy and whether its actions might lead to more voter intimidation, he added.

“The dismissal of the lawsuit … has the potential to significantly change the understanding some officials have regarding the enforcement of the Voting Rights Act, for good or for bad,” he said.

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