The Justice Department insists that only “career employees” made a controversial decision last May to drop voter-intimidation charges against members of the New Black Panther Party. An analysis by The Washington Times, however, suggests good reason to ask if the White House itself interfered in the case.
Flagrant Justice Department stonewalling of numerous outside inquiries concerning the case already had deepened the suspicion that high-level political interference was involved. Now a new analysis shows that the top Justice political appointee positively identified as having approved the controversial decisions, Associate Attorney General Thomas J. Perrelli, had a strange habit of consulting key White House lawyers in person at exactly the times the key Black Panther decisions were being made - but very rarely visiting the White House when Black Panther matters were not pressing. (See the accompanying timeline.) The Justice Department last week explicitly refused to respond to an “interrogatory” by the U.S. Commission on Civil Rights about Mr. Perrelli’s involvement.
Two of the New Black Panthers had been videotaped with one carrying a weapon and both reportedly using racial epithets while dressed in paramilitary garb outside a Philadelphia polling place on Election Day 2008. For months, the case seemed like a slam-dunk - until department decision-makers suddenly reversed course in May. The Washington Times first reported on July 30 that Mr. Perrelli, the third-ranking member of the department, had been consulted about and had approved the decision to dismiss most of the charges.
Other factors point to a heightened White House political sensitivity about this case. Oddly, for instance, Obama administration temporary appointees supervising the Justice Department’s Civil Rights Division gratuitously warned staff attorneys at a key moment that they must under no circumstances mention President Obama or the change from the George W. Bush administration to the Obama administration in their court filings.
Herewith, then, is an all-inclusive guide to the scandal of the New Black Panther Party voter-intimidation case, based largely on documents unearthed by The Washington Times, along with other original reporting - and why it is important:
The undisputed facts on Election Day 2008
Two members of the New Black Panther Party, wearing black berets, black combat boots, black dress shirts and black jackets with military-style markings, were videotaped at a Philadelphia polling place as one brandished a 2-foot-long nightstick. Multiple witnesses complained that they felt intimidated, and several filed affidavits attesting as much. One witness said that one Black Panther told a white man, “Cracker, you are about to be ruled by a black man.” A Justice Department memo also says that a black couple, both Republican poll watchers, told authorities they were concerned for their safety when leaving the polling place at day’s end because the Black Panthers accused them of being “race traitors.”
The Justice Department’s response through March 23
Career lawyers at the Justice Department decided as early as Dec. 22, 2008, to seek a complaint against the two Black Panthers onsite as well as Black Panther National Chairman Malik Zulu Shabazz and the New Black Panther Party as a whole. Mr. Shabazz and the party were charged with having “managed, directed and endorsed the behavior, actions and statements” of the other two. The Justice Department formally filed the civil action on Jan. 7, 2009, with approval at the highest levels of the department.
On March 13, department lawyer J. Christian Adams spoke to Michael Coard, the attorney for defendant Jerry Jackson, who said he would be filing an answer to the charges. But no Black Panther filed an answer or appeared in court. On March 16, the court notified Justice that the defendants had made no response, that if they made no response by April 1, they would be in default, and that the department had an April 3 deadline to file an official Request for Entry of Default. On March 23, department lawyers presented their draft motion to longtime liberal career lawyers Steven H. Rosenbaum and Loretta King, who had been chosen by the Obama team to act in supervisory roles at the department’s Civil Rights Division pending Senate confirmation of a permanent division chief. In retrospect, that is when the case started going off the rails.
The key Justice Department lawyers supporting the case
The team on the case consisted of Christopher Coates, chief of the Voting Section; Robert Popper, deputy chief of the section; and J. Christian Adams and Spencer R. Fisher, both career (nonpolitical) attorneys. Before joining Justice as a career attorney, Mr. Coates had been a staff attorney for the American Civil Liberties Union’s (ACLU) Voting Rights Project. He is a former winner of the Thurgood Marshall Decade Award from the Georgia Conference of the National Association for the Advancement of Colored People (NAACP), hired at Justice during the Clinton administration, and winner of the Civil Rights Division’s Walter Barnett Memorial Award for Excellence and Advocacy as well as numerous special achievement and meritorious performance awards. Mr. Adams, for his part, had won a special award for his work on behalf of black voters in Georgetown, S.C. Also supportive of the case, upon official request for their opinion from decision-makers at Justice, were two top lawyers at the department’s Appellate Division, Diana K. Flynn and Marie K. McElderry.
Key Justice officials opposing the case
Ms. King was the acting assistant attorney general, and Mr. Rosenbaum was the acting deputy during the key decision-making period last spring. Ms. King has twice been sanctioned (either directly or indirectly) by federal courts for misconduct, including just last month in a case along with Mr. Rosenbaum. According to former Civil Rights Division official Hans A. von Spakovsky, the two had not worked on voting cases since they left the Voting Section in the mid-1990s.
Ms. King otherwise is best known for issuing the decision last year that refused to let the majority-black town of Kinston, N.C., by its own choice, hold nonpartisan municipal elections - with Ms. King effectively ruling that Kinston’s blacks were too ignorant to know how to cast their votes if the Democratic Party label weren’t on the ballot.
Mr. Rosenbaum’s previous history on voting rights included energetically carrying a case stemming from a 1990 incident in which the Republican Party of North Carolina mailed misleading postcards to black voters saying they would be ineligible to vote if they had moved recently from one precinct to another. That incident puts him in the odd position of arguing that postcards are “intimidating” but a physical presence at a polling place - while wearing paramilitary garb - is not.
Also, as noted above, Mr. Perrelli, the associate attorney general, was consulted and ultimately approved the decision to be lenient on the Black Panthers, according to multiple officials.
Political ties to the Obama White House and the Democratic Party
The New Black Panther Party has been identified as a “hate group” even by left-wing organizations and also has been denounced by the remnants of the original Black Panther Party. Yet at one point in 2008, the official Obama campaign Web site proudly featured a Web page highlighting the New Black Panther Party endorsement. One of the Black Panthers originally charged in the voter-intimidation case, Mr. Jackson, was an elected member of Philadelphia’s 14th Ward Democratic Committee and was credentialed to be an official Democratic Party poll watcher. The case against him was dropped just four days before municipal elections in Philadelphia - just in time for him again to serve as an official Democratic poll watcher.
Mr. Rosenbaum has a history of working with President Obama. In 1995, he helped lead the Justice Department in intervening on behalf of the now-controversial ACORN community-agitating group in a voting-rights case in Illinois. One of ACORN’s lead attorneys in that case was Mr. Obama. A federal appeals court ruled strongly against the Obama-Rosenbaum position, calling it “untenable.”
Mr. Perrelli raised more than $500,000 for Mr. Obama’s race for president. His ties to the president go back even further than Mr. Rosenbaum’s: He served as managing editor at the Harvard Law Review while Mr. Obama was the publication’s president.
Ms. King, according to Mr. Spak-ovsky, “talked about resigning when I was [at the Justice Department] to run as a Democratic candidate in Maryland and is as political as any political appointee at Justice.”
Direct policy implications
In his farewell remarks to his Civil Rights Division colleagues before being exiled to a South Carolina office (and after being ordered by superiors not to comply with a subpoena from the U.S. Commission on Civil Rights), Mr. Coates reportedly said the division’s focus under Mr. Obama is at risk of “enforc[ing] the Voting Rights Act in a racially biased fashion and turn[ing] a blind eye whenever incidents arise that indicate that minority persons have acted improperly in voting matters.” Members of the Civil Rights Commission likewise have indicated that they are worried about a potentially inequitable administration of justice - a concern that appears to undergird its formal investigation into the matter.
Indirect policy implications
The Justice Department has asserted seven different supposed grounds for legal “privileges” against cooperating with the commission. By refusing to comply with the commission’s subpoenas and by stonewalling other, repeated inquiries from members of Congress and the press, the Justice Department steps closer to major - even constitutional - confrontations on multiple fronts. These range from issues of executive branch privileges to issues of separation of powers and to more general “open government” laws and policy choices.
By Andrew P. Napolitano
The president's men trash the Constitution to pursue antagonists