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.
The commission, in a 5-2 vote, issued the subpoenas in an effort to determine how the civil complaint against the New Black Panther Party had been handled, including an explanation of why the complaint was dismissed and why there has been a "dearth of cooperation" from the department in response to six months of letters by the commission seeking information on the case.
In addition, the commission seeks to review copies of all e-mails or memos sent to or received by political appointees at the Justice Department concerning the case and any reports or documents about the case prepared by the career attorneys for an ongoing internal review by the Justice Department's Office of Professional Responsibility (OPR).
In August, Mary Patrice Brown, acting OPR counsel, said she had "initiated an inquiry into the matter."
Records show that the Justice Department attorneys, led by Christopher Coates, chief of the voting rights section, decided as early as Dec. 22, 2008, to seek charges against the New Black Panther Party and three of its members.
The decision to dismiss the complaint came after a delay in the case was ordered by then-Acting Assistant Attorney General Loretta King after an April 2009 meeting with Associate Attorney General Thomas J. Perrelli, the department's No. 3 political appointee, according to interviews with lawyers familiar with the case.
At the time, the career attorneys had recommended that the department seek sanctions against the defendants because the government had already won a default judgment in the case. The attorneys were in the final stages of completing that work when they were told to seek the delay, according to federal records and interviews with the same lawyers familiar with the case.
Justice Department spokeswoman Tracy Schmaler has said the department has an "ongoing obligation" to be sure the claims it makes are supported by the facts and the law. She said that after a "thorough review" of the New Black Panther Party complaint, top career attorneys in the Civil Rights Division determined the "facts and the law did not support pursuing the claims against three of the defendants" in the New Black Panther Party case.
Two senior House Republicans have not been convinced and continue to demand that they be allowed to speak directly with the career attorneys who brought the complaint.
Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee, said the department's refusal to provide Congress with an explanation of the dismissal "only further raises concerns that political favoritism played a role in this case." Rep. Frank R. Wolf of Virginia, a senior member of the House Appropriations Committee, said he was "deeply troubled by this questionable dismissal of an important voter-intimidation case in Philadelphia."
Filed in U.S. District Court in Philadelphia, the complaint said two New Black Panther Party members in black berets, black combat boots, black shirts and black jackets with military insignias intimidated voters with racial insults, slurs and a nightstick. A third party member was accused of directing and endorsing their behavior.
The incident was captured on videotape and gained national attention after it was shown on YouTube.
Accused were the party; its chairman, Malik Zulu Shabazz, a D.C. lawyer; Minister King Samir Shabazz, head of the Philadelphia chapter who was accused of wielding the nightstick; and Jerry Jackson, a Philadelphia party member.
Justice later sought an injunction against Mr. Samir Shabazz, who carried the nightstick, barring him from displaying weapons at polling places until 2012.
New Black Panther Party members have not returned telephone calls and e-mails seeking information on the case, but Mr. Malik Shabazz told the Associated Press last week that the decision to drop the complaint was correct. He called the resulting criticism a "political witch hunt" by the Republicans to target Attorney General Eric H. Holder Jr.