- The Washington Times - Wednesday, November 4, 2009

Could the U.S. Commission on Civil Rights actually subpoena U.S. Attorney General Eric H. Holder Jr.?

That scenario is unlikely, but it suddenly has entered the realm of possibility. The Civil Rights Commission is making a full inquiry into a controversy about a voter-intimidation case against the New Black Panther Party and several of its members and has escalated its investigation. At its meeting last Friday, the commission voted 5-2 on a motion to authorize Chairman Gerald A. Reynolds to issue subpoenas to a broad range of witnesses and decision-makers relating to the case.

The motion specifically listed three separate categories of Justice Department personnel among the five categories of potential subpoena targets. As well it should. After the judge in the case had issued a default judgment against the Black Panthers, the Justice Department inexplicably dropped all the charges except one and asked for an absurdly non-punitive “penalty” on the one charge remaining.

The Washington Times has since reported that, despite original assertions to the contrary by Justice spokesmen, top political appointees at the department participated in the decision to drop the cases. Meanwhile, the department has remained unresponsive to requests from Republican Reps. Frank Wolf of Virginia and Lamar Smith of Texas for more explanations.

In authorizing subpoenas, the Commission on Civil Rights is acting directly pursuant to its primary purpose, as defined by law, of “investigat[ing] allegations in writing under oath or affirmation relating to deprivations because of color [or] race … of the right of citizens of the United States to vote and have votes counted.” Moreover, “the Commission shall submit to the president and Congress at least one report annually that monitors federal civil rights enforcement efforts.” And: “The Commission may issue subpoenas for the attendance of witnesses and the production of written or other matter.” Furthermore, “all Federal agencies shall cooperate fully with the Commission.”

This passage from its authorizing legislation does not say federal agencies “may cooperate,” but that they “shall cooperate fully.”

Finally, by regulations that implement the statute, whoever “willfully withholds … any documentary material, answers to written interrogatories, or oral testimony, which is subject to such demand … shall be fined under this title or imprisoned not more than five years, or both.”

In short, all the top political appointees and temporary political appointees at Justice who had a role in deciding to drop the case are legally compelled to cooperate with the commission’s investigation. That means, in turn, that if Mr. Holder himself played any role in that decision or in a refusal to reinstitute the case, he should be subject to a subpoena no less than the Black Panthers themselves are.

The allegations against the Black Panthers involve what veteran civil-rights activist Bartle Bull called “the most blatant form of voter intimidation I’ve ever seen.” If the Justice Department is changing its long-standing approach to and criteria for civil-rights enforcement, the commission is uniquely situated to analyze the change. If perchance the case was dropped for nakedly political reasons, that’s a potential scandal.

The Justice Department should fully cooperate with the Commission on Civil Rights. Failure to do so would be unlawful, and a travesty of justice.