- The Washington Times - Thursday, February 4, 2010

In a terse letter to a Republican lawmaker who requested an investigation of the dismissal of complaints against the New Black Panther Party, Justice Department Inspector General Glenn A. Fine said he should be able to do so, but was powerless because Congress had stripped him of that authority.

In a four-page response to Rep. Frank R. Wolf of Virginia, who had requested that the IG’s office investigate what he called the complaint’s “unfounded dismissal,” Mr. Fine said that unlike all other inspectors general who have unlimited jurisdiction to investigate all claims of wrongdoing inside their agencies, his office does not.

Mr. Fine said in the letter, a copy of which was obtained by The Washington Times, that he understood Mr. Wolf’s desire to have his office review the matter “because of our independence.”

But while Mr. Fine had advocated expanding his jurisdiction to allow him to investigate all suspected wrongdoing within the department, Congress had not seen fit to do so.

“Unfortunately, unlike all other OIGs which have unlimited jurisdiction to investigate all allegations of waste, fraud or abuse within their agencies, the Department of Justice OIG does not,” he wrote. “For several years, I have expressed my position that Congress should change this jurisdiction.

“I have raised various arguments for this change including … the independence issues that arise because OPR reports to the attorney general,” he said.

In requesting that Mr. Fine’s office investigate the handling of the New Black Panther Party case, Mr. Wolf had challenged the independence of the Justice Department’s Office of Professional Responsibility (OPR), which has been reviewing the dismissal for the past seven months.

Mr. Wolf noted that OPR reports directly to the attorney general, saying he did not think the office was “capable of conducting an unbiased and independent review of this case, given that it reports to a political appointee.”

The OPR probe has focused, in part, on accusations that political appointees within the Obama administration’s Justice Department made the decision to dismiss the civil complaint, which accused the New Black Panther Party and three of its members of intimidating voters during the November 2008 elections.

“When Congress most recently considered this issue in its deliberation on the IG Reform Act, which was enacted in 2008, I again advocated for a change in the jurisdiction between OPR and OIG, to allow us to investigate all matters within the department” Mr. Fine said.

“However, Congress did not include this change in the IG Reform Act. Therefore, the jurisdiction to investigate department attorneys’ legal and litigation decisions, such as the DOJ attorneys’ litigation and legal actions related to the handling of the New Black Panther Party, remains with OPR,” he said.

The letter said that during his congressional testimony in 2008, Mr. Fine noted that his office “unfortunately” lacked jurisdiction to investigate Justice Department attorneys in the exercise of their legal duty.

“I hope that Congress will do something about that because I believe the inspector general’s office ought to have unlimited jurisdiction in the Department of Justice,” he told the Senate Judiciary Committee in July 2008. “We’re independent, we’re transparent, and there’s no conflict of interest. So I think that ought to be changed.”

The letter also noted that he told the House Judiciary Committee in October 2008 that his office “does not have the authority to investigate prosecutive decisions made by DOJ attorneys: Congress would have to amend this carve out to our jurisdiction, and I have suggested that it be amended.”

Noting his long-standing opposition to his limited jurisdiction, Mr. Fine said in the letter that he also told the Senate Homeland Security and Governmental Affairs Committee in July 2007 that the current limitation on his jurisdiction “should be changed because it assigns jurisdiction to OPR, which is not statutorily independent and reports directly to the attorney general and the deputy attorney general.”

He told the committee at the time that this arrangement created a “conflict of interest and contravenes the rationale for establishing independent inspectors general.”

The order giving jurisdiction to investigate the actions of attorneys in the exercise of their legal authority - up to and including the attorney general - was first issued by Attorney General Janet Reno during the Clinton administration. The order was reissued by Attorney General John Ashcroft during President George W. Bush’s administration.

Because the order was later codified by Congress, it would require congressional action to change.

Mr. Wolf had told Mr. Fine that he was “disappointed” in his “reluctance to investigate the unfounded dismissal of an important voter intimidation case,” adding that despite repeated requests for information by members of Congress, the press and the U.S. Commission on Civil Rights, the Justice Department “continues to stonewall all efforts to obtain information regarding the case’s abrupt dismissal.”

“This obstruction should be of great concern to you and merit an immediate investigation,” Mr. Wolf said. “Given that neither the Congress nor the commission can obtain critical information from the department, your authority as inspector general is the only way to learn whether the department has engaged in improper conduct with regard to the dismissal of this case and its hostility to the commission’s statutory authorities and responsibilities.”

Mr. Fine explained, however, that he referred the matter to OPR because, by statute, it had jurisdiction in the case. He said his office had been “expressly excluded” by statute.

“The issues you raised regarding the New Black Panther Party case involved the exercise by department attorneys of their authority to litigate and make legal decisions, and whether those decisions were based on improper considerations, such as political influence,” he said. “That is why we referred the matter to OPR for investigation.”

Mr. Fine also said that in response to the Wolf letter, he inquired into the status of the OPR investigation, adding that it was ongoing and that numerous documents had been collected and several interviews had been completed or were scheduled.

He also said OPR had included in its investigation accusations of whether any improper political influence affected the department’s handling of the case and whether department officials were in contact with the White House concerning the case.

The civil complaint was filed in January accusing the New Black Panther Party and two of its members of intimidating voters with racial insults, slurs and a nightstick. A third party member was accused of directing and endorsing their behavior. The incident was captured on videotape and gained national attention after it was shown on YouTube.com.

The charges were dismissed against the party, its chairman, Malik Zulu Shabazz, and Jerry Jackson, a Philadelphia party member. Justice later sought an injunction against Minister King Samir Shabazz, who carried the nightstick, barring him from displaying weapons at polling places until 2012.

The New Black Panther Party has not returned e-mails or telephone messages seeking comment.

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

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