All the elements of a trial were in place on Friday for the U.S. Commission on Civil Rights hearing on the New Black Panther Party case.
There was the chief prosecutor, played by David Blackwood, who serves as counsel to the U.S. Commission on Civil Rights. There were witnesses — Republican poll watchers Mike Mauro, Chris Hill and Bartle Bull — there were experts, and there were the charges: that the New Black Panthers intimidated voters in Philadelphia on election day in 2008, and that the Obama Justice Department’s dismissal of a civil suit brought in the waning days of the Bush administration would encourage more voter intimidation cases.
And then there were the defendants: the New Black Panther Party, the Obama Justice Department and the media, which for the most part, ignored the incident and year-long controversy over the partial dismissal as it festered on conservative blogs, fed by a You Tube video showing two members of the racist fringe group standing outside a majority black polling station in Philadelphia in military-style garb.
A few journalists and members of the New Black Panther Party showed up. The Justice Department didn’t, deciding to offer up Assistant Attorney General Thomas Perez at a separate hearing on May 14 away from the spectacle of Friday’s four hour hearing.
Six uniformed members of the New Black Panther Party and a few associates also attended the hearing equipped with newspapers that claimed the party was “under fire” from the commission, right wing conservatives and The Washington Times. During the hearing, the Panthers were seated in the second and third rows of the hearing room next to controversial former Justice Department official Hans von Spakovsky and later behind Rep. Frank Wolf (R-Va.).
But this wasn’t a trial, insisted Commissioner Gail Heriot. “No one is on trial here – not the members of the New Black Panther Party, not the witnesses to the incident, not the DOJ lawyers who initially filed this lawsuit, and not the DOJ officials who ultimately decided to terminate the lawsuit except in a very minor, minor aspect,” she said.
The commission had a duty to investigate such matters, said Heriot, one of two commissioners who switched from Republican to independent during the Bush administration, allowing two additional Republicans to be appointed without violating the rule that no more than four members of a party may serve on the commission at the same time.
All that was missing for the trial was a defense team. Even those commissioners who disagreed with the commission’s focus on the matter wanted nothing to do with the New Black Panthers. “This is not a defense of the Black Panthers, this is not to belittle anything that the witnesses saw or heard, but it is about the greater issue of what this commission is really all about, a mission that we have been sorely lacking within the last five years,” said Commissioner Michael Yaki. “It is to me about one thing — partisan payback. There is nothing about this report that talks about how this goes to a broader question about voting rights enforcement.”
Members of the New Black Panther Party were subdued during the meeting, sitting quietly in their chairs and occasionally whispering to one another. At one point, when a Panther tried to hand out a statement from the party to members of the audience, a commission staffer asked him not to, and he obliged.
At another point, Minister King Samir Shabazz stood up and took photos of the commissioners, those testifying and the audience.
During brief intermissions, the Panthers lobbied the commissioners, pointing out that they suspended Shabazz until January 2010 because of his actions. After three and a half hours, the group left, taking up positions on the corner of 9th and G Streets NW where they handed out newspapers to passersby.
Some Republican members of the commission argued that this incident had broader implications for the Voting Rights Act and drew analogies to the persecution of civil rights activists in the 1960s.
“One of the turning points was the national TV pictures of ‘Bull’ Connor turning dogs and hoses on the civil rights marchers,” Gaziano said. “After that national viewing, Americans who wanted to believe it wasn’t as bad couldn’t do so.”
“So the fact that the YouTube was viewed by hundreds of thousands and broadcast on national TV raised the awareness of this issue so that would you agree with me that the dismissal is a bigger problem than not filing where the evidence is ambiguous?” asked Gaziano.
Some of the Republican members of the commission have sought to prove politics were a factor in the handling of the case. They have pressed to hear testimony from Justice Department lawyers J. Christian Adams and Christopher Coates, but the Justice Department has resisted, citing a longstanding precedent that insulates career lawyers from having to testify before committees. Thernstorm said she had a problem with subpoenaing career lawyers.
In an attempt to tie the decision to Associate Attorney General Thomas Perrelli, Republicans brought in Gregory G. Katsas, who served in an acting role as Associate Attorney General during the Bush administration.
He testified that in his experience, the Associate Attorney General would have played a role in the decision. Katsas said the White House would have not been consulted about the decision, but would be notified so they could handle press queries after a decision was announced.
At least one Republican on the commission, Abigail Thernstrom, was critical of the focus on what even Republican poll watchers admitted was an isolated incident.
“As much as I abhor the New Black Panther Party, it is nothing in my view but a lunatic fringe group, a few of whose members showed up at one polling place in a largely black, safe Democratic polling place,” Thernstrom said. “There isn’t an analogy to racist whites stopping blacks from voting throughout the Jim Crow South.”