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By NWV News writer Jim Kouri
Posted 1:00 AM Eastern
December 6, 2010

An interim report from the United States Commission on Civil Rights blasts Attorney General Eric Holder and the U.S. Justice Department for stonewalling an investigation into the DOJ's handling of a civil rights case involving the New Black Panthers and allegations of voter intimidation.

The U.S. Commission on Civil Rights on Friday released its report on the Justice Department's commitment to even-handed enforcement of the civil rights laws entitled "Race Neutral Enforcement of the Law? DOJ and the New Black Panther Party Litigation: An Interim Report." The news media's silence on the report is deafening and deserving of a separate investigation, according to enforcement officials.

The Commission on Civil Rights investigated an incident that occurred in Philadelphia during the 2008 presidential election in which two New Black Panther Party members stood at the entrance to a polling place in full paramilitary garb shouting racial slurs, one of them brandishing a police baton commonly known as a nightstick.

In January 2009, a civil suit was initiated against the Black Panthers, its chairman, and the two men at the polling place for alleged Voting Rights Act violations. Despite the entry of a default in DOJ's favor, in May 2009 the Department abruptly reversed course and dismissed charges against all but one of the defendants, and reduced the original sanctions it requested against the remaining defendant.

The Commission issued subpoenas for documents and for the testimony of key DOJ witnesses, including those supervisors allegedly responsible for the change in course of the lawsuit. The Department, however, refused to allow anyone with firsthand knowledge of the lawsuit to testify before the Commission and failed to provide critical documents relating to the Department's decision-making process.

In addition, public-interest group Judicial Watch filed its original Freedom of Information Act (FOIA) request on May 29, 2009. The Justice Department acknowledged receiving the request on June 18, 2009, but then referred the request to the Office of Information Policy (OIP) and the Civil Rights Division. On January 15, 2010, the OIP notified Judicial Watch that it would be responding to the request on behalf of the Offices of the Attorney General, the Deputy Attorney General, Associate Attorney General, Public Affairs, Legislative Affairs, Legal Policy, and Intergovernmental and Public Liaison.


Judicial Watch filed its initial lawsuit because of the agency's failure to respond. The DOJ's September 15, 2010, Vaughn index revealed that the two top political appointees at the DOJ were involved in the decision to dismiss the case, which contradicts sworn testimony by Thomas Perez, Assistant Attorney General for the Civil Rights Division, who testified before the U.S. Commission on Civil Rights that no political leadership was involved in the decision.

The Vaughn index produced by the DOJ describes documents that are currently being withheld in their entirety. The index details a series of internal DOJ emails regarding the Black Panther case between the highest political appointees inside Justice, including former Deputy Attorney General David Ogden and the Associate Attorney General Thomas Perrelli.

The Justice Department's efforts to stonewall the Civil Rights Commission's investigation were largely successful until two career staff attorneys testified before the Commission in defiance of the Department's ban, at great professional risk to themselves.

These individuals, Christopher Coates and J. Christian Adams, both testified that the Department's reversal of the New Black Panther Party litigation reflected a culture within the Justice Department that believes voting rights laws should not be enforced in a race-neutral fashion. Both witnesses testified that some DOJ personnel refused to work on voting cases in which the defendant was black and the victim white, and that those who worked on such cases suffered harassment within the Department.

Mr. Coates further testified that current political appointees have openly stated their opposition to race-neutral enforcement of voting rights laws, testimony that remains unchallenged by the Department.

Although such testimony supported the need for thorough investigation, DOJ continued to withhold relevant documents and preclude relevant officials and supervisors from testifying. The Commission was thus limited in its ability to complete a final report.

As a result, the Commission issued only an interim report on Friday that describes the evidence that has been collected up to this point and the lack of cooperation by the Department of Justice.

Although the Commission has the power to subpoena witnesses and written material and requires federal agencies to cooperate fully with its investigations, its authority to seek legal recourse when the Attorney General refuses to enforce Commission subpoenas, as has occurred repeatedly during this investigation, is unclear. The report notes that the Department has an inherent conflict of interest when it decides not to cooperate with the Commission's investigations of DOJ's actions.

The Commission recommends, therefore, that Congress consider amendments to the Commission's statute to address investigations in which the Attorney General and/or the Department of Justice have a conflict of interest arising from the Commission's requests for information.

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Options might include requiring that the Attorney General respond in writing whenever the Commission requests the appointment of a special counsel to represent it in court; a statutory provision clarifying that the Commission may hire its own counsel and proceed independently in federal court; or a conscious decision by Congress not to alter the current authority that allows the Attorney General and the Department of Justice to act against the Commission's interest without explanation.

The report was approved by a 5-2 vote. Chairman Reynolds and Commissioners Gaziano, Heriot, Kirsanow and Taylor voted in favor; Commissioners Melendez and Yaki voted against; Vice Chair Thernstrom was not present for the vote.

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The Commission issued subpoenas for documents and for the testimony of key DOJ witnesses, including those supervisors allegedly responsible for the change in course of the lawsuit.