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EDITORIAL: Caged Panther investigation

- The Washington Times - Tuesday, February 9, 2010

In their bid to protect President Obama's liberal political appointees at the Justice Department, congressional Democrats are surrendering their responsibility to keep a presidential administration honest.

A Feb. 2 letter from Glenn A. Fine, inspector general for the Justice Department, to Rep. Frank R. Wolf, Virginia Republican, ought to give pause to lawmakers of any party. In effect, the letter says there is no independent authority that can investigate any decision by the department to stonewall congressional inquiries. If the department refuses to answer congressional questions by asserting legal privileges that have never been recognized in U.S. history, the IG is powerless to assess allegations of certain sorts of departmental misconduct.

The letter from Mr. Fine explained why the IG says he is prohibited by law from reviewing whether the Justice Department or the White House allowed or instigated political interference in a decision to drop or reduce voter-intimidation charges against members of the New Black Panther Party. This means nearly a dozen separate requests from Mr. Wolf, Rep. Lamar Smith, Texas Republican, and other legislators for Black Panther-related information can be stonewalled by the Justice Department, as can inquiries and even subpoenas from the U.S. Commission on Civil Rights. In short, the department is saying that it can ignore Congress with impunity.

The House Judiciary Committee's Democrats, led by Chairman John Conyers of Michigan, voted on Jan. 13 to roll over like whipped puppies when presented with a resolution demanding answers from the Justice Department. On a 15-14 party-line vote, committee Democrats voted to look the other way rather than hold the department accountable to Congress. Seven other committee Democrats did not even have the courage to vote on the resolution.

In assessing claims of legal privileges from the Justice Department and its White House overseers, Mr. Conyers should heed the wisdom of a contrary authority on the subject: himself.

"The Committee clearly has authority under the Constitution to investigate and expose possible violations of law and abuses of executive power," Mr. Conyers wrote in a 22-page memorandum less than two years ago. "The Committee also needs more complete information on the issue of the politicization of the Department of Justice." Even more to the point, the Detroit congressman wrote: "The proper course is to recognize claims of privilege only when properly asserted in response to specific questions during a particular hearing. The courts have stated that a personal assertion of Executive Privilege by the President is legally required for the privilege claim to be valid."

In the case of the Black Panther investigation, the Justice Department is claiming privileges that are legally far weaker (if existent at all) than executive privilege, without any personal assertion by the president and on behalf of people who are technically career employees without any presidential access. Mr. Conyers' own past reasoning eviscerates these claims of privilege.

On Feb. 3, Mr. Smith wrote to Associate Attorney General Thomas J. Perrelli to ask - based on reports in The Washington Times - if he had had any discussions with White House staff in the course of deciding to drop the Black Panther case. This gets at the heart of political interference with the administration of justice that so concerned Mr. Conyers in 2008. The Judiciary chairman needs to remember why accountability matters and back Mr. Smith's right to have answers.