Magazine | July 7, 2014, Issue

Eric Holder’s Justice

Civil rights for some

With almost a thousand employees and a 2012 appropriation of $145 million, the Civil Rights Division (CRD) is one of the largest divisions within the Department of Justice (DOJ). It has seen significant increases in its budget under the Obama administration and has hired many new employees, mostly radical-liberal lawyers, in career civil-service positions. As journalist Byron York has said, the CRD is “bigger, richer and more aggressive than ever, with a far more expansive view of its authority than at any time in recent history.” He wrote that in 2010, and since then it has only gotten more so.

The extent to which the CRD’s authority has been misused under the Obama administration was vividly illustrated in a shocking 129-page order released by a federal court in Louisiana in September 2013. It involved the case of five New Orleans police officers who had been convicted of civil-rights violations over a shooting and subsequent cover-up in the aftermath of Hurricane Katrina. Judge Kurt Engelhardt overturned the convictions because of “grotesque prosecutorial misconduct” and the “skullduggery” and “perfidy” of DOJ prosecutors. He found that lawyers in the offices of the CRD and of the U.S. attorney in Louisiana had, among other misdeeds, made anonymous postings on the New Orleans Times-Picayune’s website that “mocked the defense, attacked the defendants, and their attorneys, were approbatory of the United States Department of Justice, declared the defendants obviously guilty, and discussed the jury’s deliberations.”

One of the CRD lawyers involved was Karla Dobinski. Dobinski was the “taint attorney” — the lawyer assigned to make sure that the defendants’ rights were not violated by the CRD prosecutors’ use of privileged information, such as the compelled testimony provided by the officers to internal investigators at the police department. The judge was appalled that the lawyer assigned to protect the constitutional rights of the defendants had “personally fanned the flames of those burning to see [one of the defendants] convicted” before the jury even got the case.

Judge Engelhardt used ten pages of his order just to describe the ethical rules and federal regulations violated by DOJ lawyers. He clearly believed that Holder’s Justice Department had tried to hide what had happened, because trying to get information out of the DOJ was like “slowly peeling layers of an onion.” He was also suspicious that DOJ’s reports on the internal investigation were “edited by a supervisor so as to coyly provide less information, rather than more.” Reportedly, the supervisors on the case were Deputy Attorney General James Cole (the No. 2 Obama political appointee at Justice, directly under Eric Holder) and an assistant.

The judge noted that an FBI special agent used “shockingly coercive tactics” against potential defense witnesses. After being threatened with prosecution for perjury over their earlier grand-jury testimony by the CRD’s lead prosecutor, Barbara “Bobbi” Bernstein, three of those witnesses refused to appear at trial on behalf of the defendants. The judge found it highly suspicious that 26 months after the trial, not one of those potential witnesses who could have provided exculpatory evidence had “been charged with any crime whatsoever.”

Engelhardt pointed the finger of blame in this case directly at Eric Holder. As was true in the incident involving George Zimmerman and Trayvon Martin in Florida, the radical civil-rights organizations that are allies of the administration had clamored for federal prosecutions of the New Orleans police officers. The fact that Dobinski and Bernstein remained employed at the Justice Department and that no disciplinary action was taken against them is a sad but telling comment on the type of behavior that Eric Holder finds acceptable in his prosecutors — if they are leftists who push the kinds of prosecutions that he and the administration’s political allies want. As the court noted, this demonstrated a get-a-conviction-at-any-cost attitude by Holder and his subordinates in the Civil Rights Division:

The indictment in this case was announced with much fanfare, a major press conference presided over by U.S. Attorney General Eric Holder, and widespread media attention. On that occasion, a DOJ representative said that the indictments “are a reminder that the Constitution and the rule of law do not take a holiday — even after a hurricane.” While quite true in every respect, the Court must remind the DOJ that the Code of Federal Regulations, and various Rules of Professional Responsibility, and ethics likewise do not take a holiday — even in a high-stakes criminal prosecution, and even in the anonymity of cyberspace. While fully appreciating the horrific events of September 4, 2005, and those who tragically suffered as a result, the Court simply cannot allow the integrity of the justice system to become a casualty in a mere prosecutorial game of qualsiasi mezzo [by any means necessary].

#page#Would that the New Orleans fiasco was an isolated example of Justice’s Civil Rights Division abuses.

Under Eric Holder’s direction, and the supervision of one of the administration’s most radical political appointees — Thomas Perez, the assistant attorney general for civil rights from 2009 to 2013 — the Civil Rights Division has pursued a militant civil-rights agenda intended to help Democrats win elections and to implement racial, ethnic, and sexual quotas in everything from college admissions to public employment.

Perez and the overwhelmingly liberal career staff in the CRD have waged war on religion; abused federal law to restrict the free speech of pro-life activists; sued to eliminate school choice; opposed voter-ID requirements; and used an unsupportable race-centric legal theory — disparate impact — to extort huge settlements from banks and mortgage lenders. Bob Driscoll, a former chief of staff in the CRD, says that today “it is more like a government-funded version of advocacy groups such as the ACLU or the NAACP Legal Defense Fund than like government lawyers who apply the facts to the law.”

All of this has been quite deliberate. Holder claimed he was “offended” at the way the Bush administration had supposedly transformed the Justice Department, and particularly the Civil Rights Division, which he calls the “crown jewel” of the department. He vowed to reverse the Bush administration’s actions. A longtime, current employee of the CRD told one of the authors that in the employee’s opinion, the Obama administration has converted the division into a vehicle for promoting racial spoils and radical politics by all available means, regardless of rules or ethics, with equal protection seen as an obstacle instead of a goal and employees who do not support these methods hounded into leaving.

The job of the Civil Rights Division is to enforce the law equally and fairly without regard to race, in a manner that meets the highest ethical and professional standards. But too many of the people who work there, including Eric Holder, do not, as a recent inspector general’s report said, “appreciate the importance of public confidence in the impartial . . . legitimate enforcement priorities set by” the CRD. In fact, most of today’s staff members see the CRD’s authority as a powerful tool that can be used to benefit Democratic candidates and to force their progressive social ideology on public hiring, public education, and many other areas.

They also do not believe that the CRD’s enforcement responsibilities should be pursued in a race-neutral manner. Former Voting Section chief Christopher Coates says that Eric Holder and Tom Perez appear to suffer from the same “deficiency that the old segregationists such as Ross Barnett, George Wallace, and Richard Russell suffered from when they refused to enforce the anti-discrimination provisions of the Constitution for the benefit of African-American citizens.” According to Coates, “none of these folks in the current Justice Department, including Holder, seem to be capable of understanding the need for race-neutral enforcement of the law when the victims of discrimination are not their ‘people.’”

When GQ asked Tom Perez about the operations of the CRD during the Bush administration, “he became visibly agitated,” claiming that “the whole process of decision-making was completely obliterated! Hiring processes were hijacked! They weren’t allowed to bring certain kinds of cases. They weren’t allowed to make certain kinds of arguments. I think history will judge the prior administration as the darkest hour in the division’s history.” Without realizing it, Perez gave a very accurate description of how he and Eric Holder have run the Civil Rights Division of the U.S. Department of Justice.

– Mr. Fund is the national-affairs correspondent of National Review Online. Mr. von Spakovsky is a former Justice Department official and a contributor to National Review Online. This article is adapted from their new book, Obama’s Enforcer: Eric Holder’s Justice Department.

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