- The Washington Times - Friday, January 22, 2010

The Justice Department, citing privilege claims, has refused to release e-mails and other documents sought under an open records request by The Washington Times to explain its decision last year to dismiss a civil complaint accusing the New Black Panther Party of intimidating voters at a Philadelphia polling place.

In a letter, the department said that while 69 documents totaling 135 pages were responsive to the Freedom of Information Act request for information on how and why the decision to dismiss the complaint was made, they were being withheld because of “deliberative process” and “attorney work-product” privilege exemptions.

“For your information, the withheld material includes 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 subject of your request,” said Carmen L. Mallon, chief of staff in the department’s office of information policy.

In July, The Times reported that Associate Attorney General Thomas J. Perrelli, the No. 3 official at the Justice Department, approved the decision to dismiss the complaint, according to interviews with officials familiar with the matter but not authorized to discuss it publicly.

That decision was made while career lawyers in the Voting Section of the Civil Rights Division were recommending that Justice seek sanctions in the case after they had won a default judgment in court. The lawyers were in the final stages of completing that work when they were told by their superiors to seek a delay, according to federal records and the interviews.

The delay was ordered by then-acting Assistant Attorney General Loretta King after she discussed the case with Mr. Perrelli, according to the interviews. Ms. King, a career senior executive service official, had been named by President Obama to temporarily fill the vacant political position of assistant attorney general for civil rights while a permanent choice could be made.

The complaint was dropped against the New Black Panther Party and two of its members, while the department sought a separate restraining order against the one party member who wielded a nightstick at the Philadelphia polling place in the November 2008 incident.

Questions about the dismissal have since spread to Congress with 14 Republicans on the House Judiciary Committee asking last week that Attorney General Eric. H. Holder Jr. be called to explain it. Their request was defeated in a party-line 15-14 vote.

Rep. Frank R. Wolf, Virginia Republican who doggedly has pursued questions on why the complaint was dismissed, said Thursday he intended to “stay on this issue until we find the truth.”

He and Rep. Lamar Smith, Texas Republican, sought the Judiciary Committee vote, saying they have been unable to get information from Justice on the complaint’s dismissal despite numerous requests.

Mr. Wolf, a Philadelphia native who attended college in Mississippi in the 1960s, said his “commitment to voting rights is unquestioned,” noting that in 1981 he was the only member of the Virginia delegation in the House - Republican or Democrat - to vote to extend the Voting Rights Act.

“The right to vote is so very important that the thought of these guys intimidating people at a Philadelphia polling place is troubling,” said Mr. Wolf, a senior member of the House Appropriations Committee. “We haven’t been able to get any information, but we’re going to stay with it until there is a resolution.”

Mr. Smith said Thursday he was “not surprised” that the Justice Department had “found an excuse” not to respond to the Times’ FOIA request, but was “disappointed.”

“The Justice Department has firm, but flexible, policies about the release of internal documents when there is a public interest in the information,” he said. “In the case of the New Black Panther Party, it appears that political appointees at DOJ dropped charges as a favor to political allies.

“Justice is undermined if those responsible for ensuring justice rely on a political compass rather than facts and evidence. The American people deserve to know the truth,” he said. “Continued stonewalling by the Justice Department only reaffirms Congress’ suspicions.”

Justice spokeswoman Tracy Schmaler has steadfastly maintained that 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 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.”

Ms. Schmaler also has said the department is “committed to vigorous enforcement of the laws protecting anyone exercising his or her right to vote.”

Mr. Perrelli, nominated by Mr. Obama to the Justice Department post on Jan. 5, 2009, raised more than $500,000 for the Democratic candidate in the 2008 election.

In the Philadelphia incident, two New Black Panther Party members wearing black berets, black combat boots, black dress shirts and black jackets with military-style markings were charged in a Jan. 7, 2009, civil complaint with intimidating voters, including brandishing a 2-foot-long nightstick and issuing racial threats and insults. The complaint said a third member “managed, directed and endorsed the behavior.”

None of the New Black Panther Party members responded to the charges or made any appearance in court.

A Justice Department memo shows the career lawyers decided as early as Dec. 22, 2008, to seek a complaint against the party; its chairman, Malik Zulu Shabazz, a lawyer and D.C. resident; Minister King Samir Shabazz, a resident of Philadelphia and head of the party’s Philadelphia chapter who was accused of wielding the nightstick; and Jerry Jackson, a resident of Philadelphia and a party member.

They said the deployment of uniformed members of “a well-known group with an extremely hostile racial agenda, combined with the brandishing of a weapon at the entrance to a polling place,” constituted a violation of the Voting Rights Act, which prohibits intimidation, threats and coercion.

The memo was signed by Christopher Coates, then chief of the Voting Section, who has since been transferred to the U.S. attorney’s office in South Carolina.

The New Black Panther Party has not responded to numerous e-mails and telephone messages.

U.S. District Judge Stewart Dalzell entered default judgments on April 2 after ordering the party members to plead or otherwise defend themselves. They refused to appear in court or file motions in answer to the complaint. Two weeks later, the judge ordered Justice to file its motions for default judgments - a ruling that showed the government had won its case.

On May 1, the Justice Department sought an extension of time and during the tumultuous two weeks that followed the career lawyers tried to persuade their bosses to proceed with the case, according to the officials. The matter was even referred to the Appellate Division for a second opinion, an unusual event for a case that had not reached the appeals process.

In a May 13 memo, Appellate Chief Diana K. Flynn said the appropriate action was to pursue the default judgment, adding that the complaint was aimed at preventing the “paramilitary style intimidation of voters” at polling places elsewhere and the department could make a “reasonable argument in favor of default relief against all defendants and probably should.”

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

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