DOJ Attorney Fights to Testify About Black Panthers
By Ryan J. Reilly | December 2, 2009 8:08 pm

The career Civil Rights Division attorney who helped bring a controversial voter intimidation case against members of the New Black Panther Party is in conflict with Justice Department lawyers, who’ve ordered him to hold off cooperating with an outside investigation of the matter.

J. Christian Adams (Photo by Ryan J. Reilly / Main Justice).

J. Christian Adams (Photo by Ryan J. Reilly / Main Justice).

Voting Section lawyer J. Christian Adams, who assembled the now-dismissed government lawsuit against members of the black separatist group, is arguing through his attorney that he has a legal obligation to comply with a subpoena from the U.S. Commission on Civil Rights, according to correspondence reviewed by Main Justice.

The independent executive branch agency is examining whether Obama DOJ officials improperly considered politics in their May decision to dismiss most of the civil case against the Black Panthers, who stood outside a Philadelphia polling place last November in military-style fatigues.

The commission, led by George W. Bush appointee Chairman Gerald Reynolds, is dominated by members with conservative affiliations. The two Democrats on the panel have objected to the Black Panther probe, calling it a waste of resources and a “partisan kangaroo court.”

But conservative commentators and Republican members of Congress have pressed the issue, questioning whether the decision to dismiss most of the case after the defendants failed to contest the lawsuit was political. Justice officials have said the evidence in Philadelphia was weak and the incident was isolated, making the case unworthy of further federal resources.

Last month Adams and another Civil Rights Division lawyer, Voting Section chief Christopher Coates, both received subpoenas from the commission, according to people familiar with the matter. But it is only Adams, who has a record of conservative activism, who appears to be in disagreement with the DOJ over whether to comply.

Adams “may have a statutory obligation to appear and testify,” wrote his lawyer, Jim Miles, in a Nov. 25 letter to Joseph H. Hunt, director of the department’s Federal Programs Branch. Hunt’s office defends the government against lawsuits seeking information from its files.

“Failure to comply could subject my client to imprisonment for contempt,” Miles added. “Are you requesting that my client subject himself to imprisonment?”

In a letter to Chairman Gerald Reynolds, the Justice Department told the U.S. Commission on Civil Rights that DOJ employees duty to abide by Department regulations is greater than their duty to obey the Commission (Photo by Ryan J. Reilly / Main Justice).

U.S. Commission on Civil Rights Chairman Gerald Reynolds. (Photo by Ryan J. Reilly / Main Justice).

In a Nov. 27 reply, the DOJ’s Hunt said Miles had misinterpreted the law. A 1951 U.S. Supreme Court decision, United States ex rel. Touhy v. Ragen, affirmed the right of an FBI agent to withhold documents subpoenaed by a state prisoner in a federal habeas corpus proceeding, Hunt wrote. “It is well established that a DOJ employee complying with the Touhy regulations in the face of a subpoena is not subject to contempt.”

Hunt added: “Contrary to your characterization, the Department has not given your client a ‘command to ignore’ the Commission’s subpoena. Rather, the Department has instructed him to abide by lawful Departmental regulations until a final decision has been made.”

Hunt also said that because the Justice Department decides whether to prosecute for failure to comply with executive branch subpoenas – and in this case, the DOJ has instructed Adams not to comply – “there is no reasonable likelihood of imprisonment for your client.” The agency also has no independent power to enforce subpoenas, Hunt said.

Therefore, ”The only way he [Adams] can be placed in a ‘difficult position’ is by deciding to act contrary to the instructions he has been given and, thereby, in a manner that would violate the lawful regulations,” Hunt wrote.

Adams was hired in 2005 by then-Civil Rights Division political appointee Bradley Schlozman, according to a person familiar with the situation. Schlozman was found in this joint investigation of the Justice Department’s Inspector General and Office of Professional Responsibility to have violated civil service rules by improperly taking political and ideological affiliations into account when making career attorney hires.

Before coming to the Justice Department, Adams volunteered with the National Republican Lawyers Association, an offshoot of the Republican National Committee that trains lawyers to fight on the front lines of often racially tinged battles over voting rights.

In 2004, Adams served as a Bush campaign poll watcher in Florida, where he was critical of a black couple for not accepting a provisional ballot in early voting after officials said they had no record of the couple’s change of address forms, according to Bloomberg News. Democratic poll watchers had advised voters not to accept provisional ballots because of the risk they could be discounted under Florida law, Bloomberg reported.

Adams referred questions to the Justice Department’s public affairs office, which had no comment. Schlozman, who’s now a lawyer in at the Wichita, Kan., law firm of Hinkle Elkouri, did not respond to requests for comment.

The subpoenas to Adams and Coates required a response this week. But Miles would not say Wednesday evening whether Adams would comply with the subpoena. ”It’s shocking to me that they’re suggesting he risk being sent to jail for not complying,” Miles told Main Justice.

Miles is with the Miles Law Firm in Lexington, S.C. Adams served as his general counsel in the 1990s, when Miles was South Carolina Secretary of State.

Lenore Ostrowsky, a spokesman for the commission, would not comment on scheduling of the depositions. The commission’s general counsel, David Blackwood, also said he could not comment.

This report has been changed to reflect a more detailed account of  a Bloomberg News article describing Adams’s service as a Florida poll watcher in 2004.

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