Hold That Tiger--Er, Panther

The Obama administration, through Law Lord Eric Holder's Department of Justice, recently announced the dismissal of all charges against New Black Panther Party "poll watchers" in Philadelphia. Most of you already know the story. Paramilitary outfits. Baseball bats and chains. Racial epithets hurled at potential voters. Blocking the entrance to the polling place. A civil rights worker who participated in the voter registration marches in the South in the 60s said he had never seen anything this bad anywhere in the South.

As you may also know, several of the defendants in the subsequent Voter Rights Act prosecutions were held civilly liable for their acts. The police and the local law enforcement authorities refused to take criminal action against the thugs, so the federal civil enforcement division of the Department of Justice had to do the best it could. Defaults were taken when the defendants refused to answer summonses and subpenas. But the worst the civil authorities could do to them was to impose civil penalties and obtain restraining orders and permanent injunctions against further acts of voter initimidation. Hard-working professionals in the Voters Rights Division of the Department of Justice did journeyman's work in obtaining the verdicts. But even at that, the stiffest penalty was a "keep away" order for the miscreants which forbade them to show up at polling places until December of 2010, leaving them plenty of time to show up again in 2012.

But the old order changeth. Eric Holder, he of noble speech who declared us all cowards for not speaking about race, had his political minions dismiss the charges, including those already proven. He wants everyone to speak about race, except of course himself and his department. When asked why the charges were dismissed, he danced and sang, but forgot to answer the question. Many people wanted to talk about race, as in "why did you dismiss charges against these gangsters--was it related to race?" But Mr. Holder and his gang of high-level special interest lawyers wouldn't give anyone straight answers. The professionals in the department could do nothing but shake their heads in disbelief while the amateur lawyers and professional victimologists unraveled the work they had done over a period of over a year.

After pressure from Congressional leaders such as Rep. Lamar Smith and Rep. Frank Wolf, and considerably more from the public, the United States Civil Rights Commission has acted on the outcry, and has sent a formal demand to the Attorney General's office which is called a "letter of inquiry." This first happened in June, and there is a statutory requirement that the Attorney General's office respond within thirty days. Allowing for time for preparation and general lackadaisical procedures at the Attorney General's office, the Commission allowed the deadline to come and go. But recently, pundits on TV and the blogs have once again called for action after receiving interminable non-answers to their questions. Public disgust with the dismissals was now revivified, and it spurred the Civil Rights Commission into further action.

Last week, General Counsel for the Commission contacted the Justice Department to inquire if and when a response would be forthcoming. The Commission further informed the Attorney General's office that on Friday the Commission would consider the Department of Justice to be uncooperative. Therefore, in addition to the routine investigation it was conducting into the reprehensible activities of the New Black Panther Party in general, it was going to do one thing more. The Commission is required by law to prepare no less than one full-year study each year on a matter relating to national civil rights enforcement. As a result of the Attorney General's intransigence, that study would now focus on the failure to uphold the successful litigation against the Panthers.

At long last, the Commission got action from the Attorney General's office. But not the action one would expect from an administration that claims to be "the most transparent" in American history. For once, the legal beagles at Justice moved quite quickly--to cover their rear ends. The Department, that same day, sent a letter to the Commission stating that an Office of Professional Responsibility (an arm of the Justice Department) investigation was under way, and that until it was completed, the Commission would receive no further information from the Attorney General's office. Those who are familiar with the OPR had already concluded that any investigation by that office would probably be a whitewash, but it was still the first anybody had heard of any such investigation being conducted.

Insiders at the Commission variously reported that several of the Commissioners were "aghast," "ashen-faced," and "in total shock." Whether or not the OPR at the Justice Department had started an investigation into the matter (betting is heavy on that being baloney), it is still no legal excuse for failing to comply with the Commission's formal request. The Commission is specifically and independently charged with investigation of enforcement of civil rights laws. The Voting Rights Act also specifically empowers the Commission to act when voter rights are interfered with on the basis of race. So the Commission had two obligations to investigate, and the Attorney General simply decided to stonewall, without any legal authority or precedent behind him.

The Democrats conducted multiple vexatious investigations into the Attorney General's office during the Bush administration. But in each case, the Attorney General's office responded promptly and provided the information requested. This included the perfectly legal firing of nine incompetent U.S. Attorneys, and the investigation of Voting Rights Section Chief Jack Tanner, both by Congress and the Justice Department's own Office of Professional Responsibility. Furthermore, in this matter, the OPR would be limited to investigating whether politics or other improper considerations played any role in overriding the decision of the career professional attorneys who opposed the dismissals. That is a much narrower issue, and it would not address the Civil Rights Commission's specific questions nor discharge the Commission's responsibilities--even if the OPR conducted a genuine investigation, which seems highly unlikely.

The legalese contained in the Commission's formal letter of investigation (not the earlier inquiry) can be summed up in the following way. First, the Commission wants to determine if the change in the Attorney General's response is a change in the Attorney General's formal policy for answering a letter of inquiry regarding re-opening prior investigations of civil rights violations. Secondly, the Commission needs to know, new policy or not, if the policy followed in the New Black Panther Party cases would produce different results in other voter intimidation cases. And finally, the Commission wants to know if the Justice Department has investigated other matters in a similar manner where the Voting Rights Act and the Civil Rights Act were allegedly violated.

Thomas J. Perrelli, Associate Attorney General and three other political appointees denied that they rather than the career attorneys made the decision to dismiss the charges, including those already proven. There is considerable evidence to the contrary, including several career attorneys in the Justice Department who were not directly involved in the cases discovering that Christopher Coates, DOJ Voting Rights Section Chief, Civil Rights Division, opposed the dismissals, but was overruled by the others.

The Friday meeting produced a result that can't be too pleasing to Eric Holder. By a 5-0 vote, the Commission determined to pursue the year-long investigation called for by law, and make the Holder dismissals the focus of that investigation. It further determined to send a second formal letter to the Attorney General demanding that his office cease stonewalling and comply with the Commission's demands, or show sound legal cause for failing to do so. Some experts fear that the President would order the Attorney General to refuse to cooperate, invoking executive privilege. After the Gates brouhaha, it doesn't seem likely that the President would do that, but he does seem to have a tin ear for public opinion.

In a further development, Republicans on the Hill are expressing considerable anger about the Department of Justice's refusal to cooperate with the Commission. A hold has been placed on the nomination of the Department of Justice nominee to be Civil Rights Division head, Thomas Perez. It is unlikely that the Republicans will let go of what little leverage they still have over the peregrinations of the Attorney General's office. For that reason, the appointment of Perez may be held up for the entire longevity of the investigation being conducted by the Commission on Civil Rights.

The Holder Justice Department has been very politically motivated in its selective prosecutions, suits, and dismissals. There is no reason to believe that Holder will be any less zealous in avoiding the consequences of this outrageous action of behalf of the Black Panthers. But if the Commission succeeds in proving that there was special treatment, racial consideration, and/or unusual policy making, then Holder may not be able to hide behind his cloak of transparency much longer.