- The Washington Times - Monday, April 5, 2010

President Obama or Attorney General Eric H. Holder Jr. should declare publicly whether executive privilege has been invoked in the Justice Department’s refusal to release documents showing why voter-intimidation charges against the New Black Panther Party were dismissed, says the U.S. Commission on Civil Rights.

Declaring an impasse in negotiations between the commission and the department, Commission Chairman Gerald A. Reynolds said the Justice Department has “repeatedly refused” to provide any basic information regarding the case, instead asserting “vague and generalized privileges” that do not apply.

“The actual basis for the department’s continued refusal to cooperate with the commission remains unclear,” Mr. Reynolds said in a letter last week to Mr. Holder. “For example, has the president invoked executive privilege over the materials that the commission is seeking? If that is the case, the president or the attorney general must so state.

“The department’s continued refusal to provide the requested information will lead to a conflict of interest, whereby the target of the subpoena — the department — can evade its statutory obligation to the commission by refusing to respond to or enforce the commission’s subpoena,” he said.

Mr. Reynolds asked Mr. Holder to respond by April 12 on whether he intends to cooperate in the inquiry “as is required by law,” whether he would direct his subordinates to do so, and if he intends to allow Justice Department employees to respond to the commission’s subpoenas to testify.

He said the department had “rebuffed each offer made by the commission” to meet to discuss and resolve the issues.

Justice Department officials did not respond to e-mails from The Washington Times seeking comment on the commission’s letter.

In January, the department refused to turn over documents sought by the commission to explain why a civil complaint was dismissed against members of the New Black Panther Party who disrupted a Philadelphia polling place in the November 2008 elections.

In a 38-page response, the department objected to “each and every” question and document request submitted by the commission, saying the subpoenas violated privacy and privilege concerns, and were burdensome, vague and ambiguous.

The department also said the requested information was protected by the attorney-client privilege or were not subject to disclosure because they included attorney or law-enforcement work products. It also refused to release any information about an investigation of the New Black Panther Party case by its Office of Professional Responsibility, saying the review was privileged information or was covered by the Privacy Act.

In an accompanying letter, Joseph H. Hunt, director of the Justice Department’s Federal Programs Branch, which oversees litigation matters, said the department was “constrained by the need to protect against disclosures that would harm its deliberative processes or that otherwise would undermine its ability to carry out its mission.”

Also in January, the Justice Department refused to release e-mails and other documents sought under an open-records request by The Times in the New Black Panther Party case, despite acknowledging that 69 documents, totaling 135 pages, were responsive to the request.

The Times had sought copies of e-mails between officials in the Civil Rights Division and the Office of the Associate Attorney General regarding the litigation strategy, drafts of court filings and briefing materials related to the case.

The commission issued subpoenas on Dec. 9 demanding records showing why a civil complaint against the New Black Panther Party and three of its members was dismissed after a federal judge in Philadelphia ordered default judgments in the case. The New Black Panther Party members had refused to respond to the charges or to appear in court.

The Justice Department’s Voting Rights Section was in the final stages of seeking the judgments when Loretta King, serving as acting assistant attorney general, ordered a delay. The delay came after she met with Associate Attorney General Thomas J. Perrelli, the department’s No. 3 political appointee, who approved the dismissal, according to interviews with department officials who sought anonymity because they were not authorized to speak publicly about the case.

A civil complaint was filed by the Voting Rights Section in January 2009 in Philadelphia against the party after two of its members in black berets, black combat boots, black shirts and black jackets purportedly intimidated voters with racial insults, slurs and a nightstick. A third party member was accused of managing, directing and endorsing their behavior. The incident was captured on videotape.

Four months later, the Justice Department dropped the charges, saying “the facts and the law did not support pursuing” them.

Among the documents being sought by the commission are those regarding any communications between Mrs. King, Mr. Perrelli and Mr. Holder about the case.

The civil complaint accused Minister King Samir Shabazz, head of the Philadelphia chapter, and Jerry Jackson, a Philadelphia party member, of intimidating voters at the polling place. A third party member, Chairman Malik Zulu Shabazz, a lawyer and D.C. resident, was accused of directing and endorsing their behavior.

The party members have not been available for comment. The department obtained an injunction against Mr. Samir Shabazz that prohibits him from brandishing a weapon outside a polling place until 2012.

• Jerry Seper can be reached at jseper@washingtontimes.com.

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