There are several assertions broadly circulating in the media about the New Black Panther Party matter that are inaccurate or misleading. These are the most commonly repeated:
1. The U.S. Commission on Civil Rights’s investigation is confined to the reasons behind the Department of Justice’s dismissal of the voter-intimidation case against the New Black Panther Party.
False: The Commission investigation has four principal areas of inquiry:
A. Whether high-level political appointees within the Department of Justice have enunciated a policy or tolerate a practice of enforcing certain civil-rights laws in a racially discriminatory manner;
B. Whether high-level political appointees within the Department of Justice have enunciated a policy or tolerate a practice of not enforcing Section 8 of the National Voter Registration Act;
C. Whether there is pervasive hostility within the ranks of the Civil Rights Division toward enforcing the nation’s civil-rights laws in a color-blind manner; and
D. Why did the Department of Justice dismiss most of the claims of voter intimidation in the New Black Panther Party voter-intimidation lawsuit after there had been an entry of default in the matter?
2. The investigation has uncovered no evidence that the Department of Justice has adopted a policy or practice of enforcing civil-rights laws in a racially discriminatory manner.
False: The uncontroverted testimony of J. Christian Adams, a former attorney in the Voting Rights Section of the Civil Rights Division, shows that a high-ranking political appointee in the Department of Justice gave instructions that the Voting Rights Section was not going to bring cases “against black defendants on the benefit of white victims.”
3. The Commission investigation has uncovered no evidence that the Department of Justice has adopted a policy or practice of refusing to enforce Section 8 of the NVRA.
False: The uncontroverted testimony of Mr. Adams is that a high-ranking political appointee in the Department of Justice explicitly told the entire Voting Section “that this administration would not be enforcing Section 8 of the National Voter Registration Act.” The purpose of Section 8 of the NVRA is to ensure that persons ineligible to vote are not permitted to vote.
4. The Commission investigation has produced no evidence of pervasive hostility within the Civil Rights Division to race-neutral enforcement of civil-rights laws.
False: Uncontroverted evidence adduced before the Commission shows that a culture exists within the Civil Rights Division that is hostile to bringing claims against minority defendants or on behalf of white victims. The evidence shows, inter alia, that a black Department of Justice employee who worked on a case involving black defendants was racially harassed by Voting Rights Section staff; that a Department of Justice attorney who brought a case against black defendants had his authority gradually removed; that repeated statements were made by Department of Justice personnel that the DOJ should not bring cases against minority defendants on behalf of white victims; that attorneys within the Voting Rights Section flatly refused to work on U.S. v. Ike Brown, a case involving a black defendant and both white and black victims; that Voting Rights personnel objected to use of department resources to bring cases against minority defendants; that the department refuses to enforce Section 5 of the Voting Rights Act on behalf of white victims; and that case-justification documents were altered in a manner that would reduce or eliminate the probability that a case would be filed against black defendants.
Several former Department of Justice attorneys have given statements corroborating Mr. Adams’s testimony that there is pervasive hostility within the Department of Justice toward bringing cases against black defendants or on behalf of white victims.
5. There is no evidence that any voters were intimidated by New Black Panther Party members stationed at the Philadelphia polling place in November 2008.
False: Uncontroverted testimony adduced before the Commission shows that voters turned away after seeing members of the New Black Panther Party stationed outside the polling place. There is also uncontroverted testimony that voters expressed alarm at the presence of New Black Panther Party members and there is evidence that at least one voter was afraid to leave the polling place and pass by the New Black Panther Party members. At least one black poll watcher was called a “race traitor.”
6. Career attorneys made the decision to drop the New Black Panther Party case after a review of the law and facts.
False: The individuals who made the decision to dismiss the lawsuit were political appointees under the Vacancy Reform Act. The evidence shows that all of the career attorneys assigned to the New Black Panther Party case strongly objected to its dismissal. Political appointees also sought the opinion of career Appellate Branch attorneys regarding treatment of the New Black Panther Party case, which attorneys recommended that the case be pursued. There is no evidence of any career attorneys involved in the New Black Panther Party case favoring dismissal.
7. The evidence in the New Black Panther Party matter was provided by a single “disaffected” former Department of Justice lawyer.
False: Evidence gathered by the Commission has derived from multiple sources and thousands of pages of documents.
The Commission continues to seek corroborative and rebuttal evidence regarding the reasons behind the dismissal of the New Black Panther Party case, whether there is a policy of non-enforcement of Section 8 of the NVRA, and whether there is a policy or practice of enforcing civil-rights laws in a racially discriminatory manner. The Commission’s investigation in this regard has been impeded by the Department of Justice’s refusal to produce to the Commission DOJ personnel who were involved in the decision to dismiss the New Black Panther Party case. The department continues to refuse despite the fact that:
A. The DOJ has not invoked any cognizable privilege;
B. The DOJ has a statutory obligation to cooperate with the Commission;
C. The DOJ has previously supplied witnesses to the Commission in other voter-intimidation hearings; and
D. There is an evident conflict of interest in the Department of Justice’s refusing to supply witnesses when it has a statutory duty to enforce Commission subpoenas.
In order to avoid continuing disputes with the Department regarding whether the testimony requested by the Commission is privileged, the Commission is requesting that the Department supply witnesses able to testify regarding matters unrelated to case deliberation, i.e., whether high-level political appointees within the Department of Justice have enunciated a policy or tolerate a practice of enforcing certain civil rights laws in a racially discriminatory manner; whether high-level political appointees within the Department of Justice have enunciated a policy or tolerated a practice of not enforcing Section 8 of the NVRA; and whether there is pervasive hostility within the ranks of the Civil Rights Division toward enforcing the nation’s civil rights laws in a color-blind manner. None of these matters is privileged. Thus, the Commission expects the Department to fulfill its statutory obligations to cooperate with the Commission’s investigation and produce the requested witnesses able to testify about these matters.
The Commission investigation is ongoing. Within the next few months the Commission will issue a report on the New Black Panther Party matter to the President and Congress.
– Peter Kirsanow is a member of the U.S. Commission on Civil Rights.