Bench Memos

Law & the Courts

Farr-Fetched Attack

In mid-October, the Senate Judiciary Committee favorably reported to the Senate floor President Trump’s nomination of Thomas A. Farr to a federal district vacancy in the Eastern District of North Carolina. The Left is now trying to stall further action on the Farr nomination on the flimsiest of grounds.

In 1990, the Department of Justice filed a complaint charging the 1990 Helms for Senate Committee with intimidating black voters in violation of the Voting Rights Act of 1965. The complaint alleged that the campaign sent postcards to black voters suggesting that they were ineligible to vote and could be prosecuted for voter fraud if they voted.

In answer to a written question from Senator Feinstein (see Q3 here), Farr testified that he played no role in the campaign’s decision to send the contested postcards and that he did not learn about the postcards until the Department of Justice sent a letter of complaint to the campaign and the campaign manager then called him for legal advice.

Gerald Hebert, who worked in DOJ in 1990, disputes Farr’s answer and claims that Farr “was certainly involved in the scheme as it was being developed.” In support of his claim, Hebert cites an entry he made in his diary back in 1990. That entry refers, among other things, to a meeting in Raleigh in “10/16 week” that appears to attribute to Farr the propositions that “Postcards [are of] limited use,” that the campaign “Need[s] to focus [given] only 3 weeks left Before Election Day,” that the state election boards “will be our Ballot Secur[ity],” and that “Postcards can be used for post[-]election challenges.”

Two new letters—one from Carter Wrenn, the Helms campaign manager in 1990, the other from Farr himself, responding to questions from Senator Cory Booker—demolish Hebert’s claim.

In his letter to Senator Thom Tillis, Wrenn indicates that Hebert is conflating into a single “scheme” two very different events. Farr was among those at a meeting “on October 16th or 17th” with a consultant proposing to do a ballot-security program. Among the ideas the consultant raised at the meeting was a postcard mailing to identify voters who no longer lived at their registered address. As Farr testifies in his letter, he told the meeting participants that “there was no reason to do a card mailing in 1990 because North Carolina law had been changed and returned cards could not be used to challenge voters.” (He also said that the campaign “might decide to attempt to use returned cards in a recount,” though he “was doubtful of the utility of any card mailing, even in a recount.”)

As Wrenn explains, a second and separate undertaking was the postcard mailing that was the target of the DOJ complaint. Specifically, in “late October of 1990, one of the staff brought me a copy of the postcard they wanted to mail for me to approve”:

It was near the end of the election, there was a new problem very five minutes, and the postcard sat on my desk a couple of days until the staffer returned and said, You need to approve that card today. I said, Go ahead and send it. Instead of stopping to think, review the card, or seek a legal opinion, I said send it.

Wrenn confirms Farr’s testimony that he first contacted Farr about the postcard after receiving a DOJ letter about it: “Up until that time, Tom hadn’t seen the card that had been mailed, did not know it had been mailed, or know who it was mailed.” As Wrenn points out, “the actual postcard that was mailed could not have been discussed [at the mid-October meeting] because it did not exist at the time.”

In his letter, Farr forcefully reiterates that he “played no role whatsoever in drafting the [contested] card, providing counsel on the card, deciding to mail the card, or identifying those who would receive the card.” Indeed:

When I first saw the language on the card after it had been mailed and was advised as to whom it had been mailed, I was appalled. I immediately recommended that the Helms Committee cancel their 1990 ballot security program which they did. I then spent the next several months working with the Justice Department to resolve the matter with a consent decree.

As Farr points out, the fact that the Justice Department, after its extensive investigation, did not name him as a defendant in its civil action reflects and confirms the simple reality that he was not involved in any way with the postcard—that he “did not know about the mailing of the card, its contents, or its recipients until after it had been mailed.”  

I’ll further highlight that Farr received a unanimous “well qualified” rating from the American Bar Association’s judicial-evaluations committee, which means, per the ABA Backgrounder, that it determined (among other things) that he has the “highest reputation for integrity.” (There is no inconsistency in crediting the ABA’s favorable ratings of conservative nominees and being suspicious of its unfavorable ratings of them, as the very concern is that the ABA is biased against conservative candidates.)

By the way, according to this Huffington Post article trumpeting Hebert’s claim, Hebert “didn’t work on the case [concerning the controversial postcard] directly.” Rather, he “talked frequently with the two lawyers who did,” and his diary entries reflect his understanding of what they told him. Further, far from being a neutral observer, Hebert works for the Campaign Legal Center, which has litigated against Farr on election matters, and one critic of Hebert has criticized his “history of making things up about racial issues.”


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