The U.S. Commission on Civil Rights has subpoenaed the Justice Department to obtain documents related to the handling of the case against the New Black Panther Party and several members.
Documents the commission is seeking include witness statements, copies of investigations by the Justice Department, reports of suspected voter intimidation, documents on the decision to drop charges and communications among DOJ officials relating to the case.
Just one problem – it’s up to the Justice Department to enforce the subpoena from the executive branch agency. And therein lies the conflict.
The Justice Department has not decided whether to hand over the material. It says its employees are not subject to contempt of court for refusing to disclose internal DOJ documents, under a 1951 U.S. Supreme Court decision, United States ex rel. Touhy v. Ragen.
In addition, the Department is conducting internal reviews related to the incident and has not set a time frame for when it expects to complete them.
Todd Gaziano, the commissioner leading the inquiry into the case, told Main Justice that DOJ is stonewalling and that he doesn’t buy their explanation for not facilitating the commission’s investigation.
“It’s a tremendous waste of resources for the attorney general to act in a lawless way,” Gaziano said. “The department has no statute that exempts them from our subpoena authority.”
The commission’s lack of independent authority to enforce the subpoenas it issues doesn’t diminish its status, said Gaziano. He says the commission had to resort to subpoenas because the department inadequately respond to several letters requesting information.
Until a final decision related to the commission’s review of the matter has been made, the department has instructed the two career Civil Rights Section lawyers subpoenaed so far to “abide by lawful departmental regulations.” That means they can’t be deposed without the approval of the Justice Department.
“Given the scope of the request, the Civil Division informed the commission that it would not be able to review its request in the time frame requested,” said DOJ spokesperson Alejandro Miyar. “We’ve requested additional information from the commission and we’ll respond, but no, there is no time frame.”
An inquiry into the matter was opened by the Office of Professional Responsibility at the request of House Judiciary Committee Chairman Lamar Smith (R-Texas), according to a DOJ letter to Smith dated Aug. 28.
Members of the black separatist group stood outside a Philadelphia polling place last November in military-style fatigues. The government filed a civil lawsuit against the organization and three members in the waning days of the Bush administration.
The case was compiled by J. Christian Adams, a career Voting Section attorney with a record of conservative advocacy, who was hired in 2005 by then-Civil Rights Division political appointee Brad Schlozman.
A joint investigation of Schlozman by the DOJ’s Inspector General and OPR found that Schlozman had broken federal law by improperly taking politicla and ideological affiliations into account when hiring career civil service lawyers.
The report said Schlozman was ”unsuitable for public service” and found he’d referred to applicants with liberal affiliations as “mold spores,” “commies” and “crazy pinkos.”
Earlier this year, then-acting Civil Rights Division chief Loretta King recommended dismissing most of the complaint, after the New Black Panther members and the party failed to respond. Associate Attorney General Tom Perrelli approved her recommendation, The Washington Times has reported. Most of the complaint was dismissed in May. An injunction was obtained against one New Black Panther Party member who held a nightstick outside the Philadelphia polling place. Read the notice of dismissal here.
Conservatives have characterized the incident as evidence of politicization of the Justice Department under Attorney General Eric Holder.
The complaint alleged violations of the Voting Rights Act section 11(b), which deals with voter intimidation. It was only the third case on alleged violations of section 11(b) in the history of the Voting Rights Act, passed in 1965.
DOJ officials say they are following department policy regarding disclosure of information about cases and requiring their current and former employees to do the same.
“We’ve had long standing guidelines that are very clear that current and former employees must be authorized by the department before disclosing internal information regarding their official duties,” said Miyar. “We have to follow the long standing guidelines.”
In a letter to the Justice Department, the commission’s general counsel refered to a “dearth of cooperation” on the part of the department.
“We are mindful of the sensitivity of the subject matter involved and aware that, in response to similar requests, the department has raised various concerns and matters of privilege,” wrote David Blackwood. “While such considerations carry weight, cooperation with commission investigations is a mandatory statutory obligation.”
Democratic commissioners have criticized the agency’s narrow focus on the Black Panther incident. But at least one prominent Republican also agrees.
“They’re provoking a confrontation with the White House, and I’m not sure what the benefits are going to be,” conservative commentator Linda Chavez, a former staff director for the commission, told Main Justice. “Obama has left them alone for now, but he could come in and make big changes,” said Chavez.
Calling the commission an “odd hybrid,” that has been “a thorn in the side of many different administrations,” Chavez said she considers the commission an executive branch agency with very little authority. She said the information it is requesting from the Justice Department, specifically the internal communications between officials handling the case, should fall under executive privilege.
“It calls up the whole question of whether the commission has outlived it’s usefulness,” said Chavez.
Gaziano disagreed with Chavez. The commission’s subpoena power is akin to that of a congressional committee, said Gaziano.
He also said the commission wants to look more broadly at voter intimidation allegations that the Civil Rights Division has investigated, even those in which charges were not filed. He said the OPR investigation should not be used as an excuse to delay the commission’s investigation.