President Obama’s expected nomination of assistant attorney general Thomas Perez to be secretary of labor merits extremely close scrutiny by senators from both parties, for several concerns about Perez’s record as head of the Civil Rights Division of the Department of Justice transcend partisanship and ideology. Just one of those concerns involves Mr. Perez’s sworn testimony before the U.S. Commission on Civil Rights.
DOJ’s peculiar dismissal of a voting-rights intimidation case against the New Black Panther Party (NBPP) in 2009 was the subject of a more than year-long investigation by the commission. Throughout the investigation, the DOJ insisted that no Obama political appointees were involved in the deliberations resulting in the decision to dismiss a case DOJ had essentially already won; only career attorneys were involved. The DOJ’s insistence on this point culminated with Mr. Perez’s sworn testimony before the commission on May 14, 2010, regarding possible political interference with the case:
Commissioner Kirsanow: Was there any political leadership involved in the decision not to pursue this particular case any further than it was?
Asst. Atty. Gen. Perez: No. The decisions were made by [DOJ career attorneys] Loretta King in consultation with Steve Rosenbaum, who is acting deputy assistant attorney general.
The DOJ provided the same responses to members of Congress. The department never departed from that position.
Throughout, the department’s cooperation with the commission’s investigation was, to put it charitably, grudging. This, despite the fact that the DOJ has a statutory obligation to cooperate fully with commission investigations.
The Civil Rights Division refused to answer 18 separate interrogatories pertaining to the substance of the NBPP case. The Division also failed to provide witness statements for twelve key witnesses and refused to respond to 22 requests for production of documents. Further, DOJ barred two Civil Rights Division attorneys from testifying before the commission (the two later defied the department and testified at considerable risk to their professional careers).
The department refused to turn over a number of requested documents, asserting a variety of specious privileges. In response, the commission requested a privilege log, i.e., just a list of those documents DOJ maintained were protected by privilege and therefore not subject to production. The DOJ failed to produce such a log. As a consequence, the commission repeatedly asked Attorney General Holder to appoint a special counsel to investigate the Civil Rights Division’s handling of the NBPP case and its refusal to comply with the commission’s document requests and subpoenas. No such appointment was made.
It wasn’t until a FOIA lawsuit by Judicial Watch that DOJ finally produced a privilege log. The revelations contained in such log were extraordinary. The log identified more than 50 emails between high-level Obama appointees and career attorneys involving “the Government’s decisionmaking process” involving the NBPP case — all in close temporal proximity to the DOJ’s otherwise bewildering decision to drop a case it had already won. As Judge Walton of the U.S. District Court for the District of Columbia diplomatically stated in his opinion, the DOJ’s internal documents “contradict Assistant Attorney General Perez’s testimony [before the commission] that political leadership was not involved” in the decision to dismiss the NBPP case. But for the lawsuit, neither the commission nor the public would have ever seen any of this information.
Moreover, during the commission’s investigation, former and then-current DOJ voting-section attorneys testified that a high-level political appointee announced to them that the Obama administration will not bring voting-rights cases on behalf of white victims against black defendants. An attorney also testified that a high-level appointee instructed the Voting Section that the Obama administration will not enforce Section 8 of the National Voter Registration Act ensuring that those voting are actually eligible.
All of these things should be of tremendous concern to all senators, regardless of party, when considering the president’s likely choice of Thomas Perez for labor secretary. They should, at minimum, be the subjects of extensive questioning of the nominee. Thereafter, someone may wish to pose a few questions to the man who will be making the nomination.